In order to establish liability, the plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that the departure was a proximate cause of the plaintiff's injuries. A defendant moving for summary judgment must make a prima facie showing either that there was no departure from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries. Where the defendant meets its prima facie burden as to both elements, the burden shifts to the plaintiff to rebut the defendant's showing by raising a triable issue of fact as to both the departure element and the causation element. While conflicting expert opinions may raise credibility issues which can only be resolved by a jury, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact. Expert opinions in opposition must address the specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record. An expert opinion that is contradicted by the record cannot defeat summary judgment.
Audette v. Toussaint-Milord, NY Slip Op 00298 (2d Dep't January 19, 2022)
