NY Medical Malpractice Attorney Report: Appellate Division Fourth Department Reinstates Plaintiff’s Claims

In a recent New York medical malpractice case, Defendant Geneva Hospital’s motion for summary judgment (dismissal) was granted by the Trial court. Plaintiff appealed and the Appellate Division, Fourth Department reversed. The Court reasoned that when seeking summary judgment in a medical malpractice action, it is the moving party’s burden to disprove every allegation of departures from the standard of care allegedly committed by the defendant. Here, defendant hospital’s expert failed to address several claims made in the plaintiff’s complaint and bill of particulars.

The affidavit submitted by defendants’ expert did not address several claims of negligence raised by the plaintiff in the amended complaint. Specifically, plaintiff alleged that the Hospital’s failed to call a code and initiate cardiopulmonary resuscitation (CPR) in a timely manner. Defendants’ own submissions suggested that there may have been a delay of 15 minutes between the discovery of decedent unresponsive in her hospital bed and the initiation of CPR. Defendant’s expert failed to address this delay in his affidavit. Consequently, the Court denied that part of defendants’ motion holding that the burden of proof never shifted to plaintiff and the motion should have been dismissed.

Humphrey v. Gardner, 81 AD3d 1257 (2011 4th Dept.).

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