FAILURE TO PRODUCE UNREDACTED COPY OF PAPERS RESULTED IN DISMISSAL
D.R. filed a medical malpractice case alleging that she suffered injuries as a result of the defendant doctor’s failure to diagnose and treat her appendicitis.
When the doctor and the hospital later sought the litigation's dismissal (via a motion for summary judgment), they provided the sworn statement of a named expert who was of the view that the defendants had, at all times, acted within “accepted standards of medical practice,” fully consistent “with good and accepted emergency medicine practice.”
While, in opposition, D.R. submitted a sworn statement from a medical expert of her own, that individual’s name was inexplicably redacted from the document. Since the expert was not identified by name, and the court was supposedly not given a clean copy for in camera review, the Suffolk County Supreme Court granted relief in the defendants’ favor and dismissed the case.
On appeal, the Appellate Division, Second Department, agreed that the redacted document was insufficient to raise a “triable issue of fact.” While D.R.’s papers indicated that an unadulterated version would be submitted to the judge, absent “proof in the record that the unredacted affirmation was ever actually provided to the court,” the AD2 thought the dismissal was “properly granted,” and affirmed the outcome.
Bet she wishes she could redact that ….
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