A surgeon being sued for allegedly negligently performing a total knee replacement on the plaintiff showed on motion for summary judgment that the accepted medical standard of care had been met, thus shifting to the plaintiff the burden of showing the existence of a triable issue of fact.
Thereafter, the trial court improperly allowed the plaintiff to submit additional expert opinions alleging that the surgery was contraindicated in light of the plaintiff’s preexisting condition, a claim not properly made in the complaint. This addition expanded the scope of the patient's theory of malpractice.
The New York Appellate Court reversed the trial court’s order and entered summary judgment for the surgeon. See: Ostrov v. Rozbruch, 936 N.Y.S.2d 31, 2012 N.Y. Slip Op. 00022 (N.Y.A.D. 1 Dept. Jan 03, 2012).