Summary
The Appellate Division, Second Department affirmed the Supreme Court's grant of summary judgment dismissing a medical malpractice claim brought by an infant plaintiff concerning his liver transplant. The court found that the defendants met their prima facie burden by submitting expert affirmations establishing compliance with the standard of care and absence of proximate causation. The plaintiff's opposing expert opinions were deemed insufficient because they were conclusory, speculative, and failed to rebut the defendants' specific assertions or demonstrate a diminished chance of a better outcome. Additionally, the court correctly refused to consider a new theory of liability raised for the first time in opposition to the motions.
Topics
Practice areas
Questions Presented
- Whether the defendants are entitled to summary judgment dismissing the medical malpractice claims.
- Whether the plaintiff’s expert testimony raises a triable issue of fact on proximate causation.
- Whether the court should consider a new theory of liability alleging failure to diagnose a urinary tract infection.
Holdings
- The defendants are entitled to summary judgment because they established a prima facie entitlement to judgment as a matter of law and the plaintiff failed to raise a triable issue of fact on proximate causation.
- The court properly declined to consider the new theory because it was not discernible from the plaintiff’s bills of particulars.
Key quotations
“The Supreme Court correctly declined to consider the plaintiff's theory, raised for the first time in opposition to the defendants' motions for summary judgment, that the defendants failed to diagnose and treat the plaintiff for a urinary tract infection.”
Factual background
In 2013 the plaintiff, an infant, suffered liver failure requiring a transplant. The plaintiff alleged that the pediatrician, gastroenterologist, and hospital failed to diagnose and treat the liver failure, causing the need for transplant.
Procedural history
The plaintiff, an infant who suffered liver failure in 2013, sued the pediatrician, gastroenterologist, and hospital for failure to diagnose and treat. The trial court granted the defendants' motions for summary judgment. The appellant appealed the grant of summary judgment.