PLAINTIFF FAILED TO SUPPLY COMPETENT MEDICAL EVIDENCE OF ERROR
After a shoulder-reduction procedure went awry, JPB filed a medical malpractice action, in Dutchess County Supreme Court, against Dr. "R. S.," Emergency Medical Association of New York, P.C., and, Westchester County Healthcare Corporation.
When the the defendants moved – by motion for summary judgment – for the case’s pre-trial dismissal, and that request was granted, JPB appealed.
On its review, the Appellate Division, Second Department, noted that it was JPB's burden to proffer “evidentiary facts” sufficient to rebut defendants’ showing that they had not departed from “good and accepted medical practice,” or that any departure was not the “proximate cause” of the injuries in dispute.
While JPB's expert opined that Dr. R.S. had used “excessive force” -- as evidenced by injuries to the decedent’s forearm -- that assertion was viewed as “conclusory and insufficient to raise a triable issue of fact,” because the expert failed to indicate the amount of force that should have been used and how it was to be measured. (As the AD2 noted, the “mere presence of an injury does not mean that excessive force was used ….”)
And even though the decedent suffered from osteoporosis, since there was no testimony that the shoulder-reduction procedure was improper given the existence of that condition, the AD2 let the dismissal stand.
Would you believe JPB was left shouldering all of that?
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DECISION