Bacalan v St. Vincents Catholic Med. Ctrs. of N.Y.

Summary

The Appellate Division, Second Department, reversed an order denying St. Vincent's motion for summary judgment in a medical malpractice action and granted dismissal of the claims against the hospital. The court held that the hospital's expert addressed the specific malpractice allegations and that the plaintiffs failed to raise a triable issue of fact. The plaintiffs' newly asserted theory concerning medication administration was improperly raised for the first time in opposition, and their expert affirmation was not competent evidence because the expert was not authorized to practice medicine in New York.

Holdings

1. The hospital established prima facie entitlement to summary judgment by submitting competent expert evidence addressing and rebutting the specific malpractice allegations, including the timing and performance of the angiogram and embolization, the alleged failure to diagnose spinal cord ischemia, the alleged failure to use magnetic resonance angiography, and causation.
2. The plaintiffs could not raise, for the first time in opposition to summary judgment, a new or materially different theory of recovery alleging that hospital employees improperly administered Decadron and Heparin.
3. The plaintiffs' expert affirmation did not constitute competent evidence because the expert was not authorized by law to practice medicine in New York.

Questions Presented

1. Whether the hospital established entitlement to summary judgment by addressing the specific malpractice allegations in the plaintiffs' complaint and bill of particulars.
2. Whether the plaintiffs could oppose summary judgment based on a new theory that hospital employees improperly administered Decadron and Heparin when that theory was not pleaded.
3. Whether the plaintiffs' expert affirmation constituted competent opposition evidence when the expert was not authorized by law to practice medicine in New York.

Disposition

reversed