EXPERT FAILED TO EVINCE FAMILIARITY WITH NURSING PRACTICES
In a medical malpractice action filed with the Nassau County Supreme Court, the defendants – Gentiva Health Services, Inc., and Gentiva Services of New York, Inc. (“Gentiva”) – asked the judge to grant them summary judgment -- a pretrial determination in their favor -- dismissing the case. When that request was denied, an appeal ensued.
On its review, the Appellate Division, Second Department, noted that a party asserting malpractice must must show that there was “‘a deviation or departure from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries.’"
In this instance, the defendants came forward with proof that the nursing care they provided did not run afoul of governing practices and that any purported deviation did not cause the decedent’s injuries. That then shifted the burden on the plaintiffs to come forward with “sufficient evidentiary facts or materials” to rebut that showing.
While plaintiff supplied a sworn statement from a physician, that individual’s expertise was called into question, as he failed to establish that he had the requisite “familiarity with the applicable standard of nursing care.” Since his analysis was seen as “speculative, conclusory, and nonresponsive to the specific assertions raised by the defendants' experts,” the AD2 thought the court below had erred, that Gentiva’s motion should have been granted, and that case against them should have been dismissed.
Did the plaintiffs not use enough care to oppose that motion?
And do you think they’re now nursing a grudge?
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DECISION