EMAIL TO A FRIEND COMMENT

 

Expert Affidavit With Expert’s Name Redacted Incompetent Evidence


A man was diagnosed with Hirschsprung's disease, a condition that affects the nerve cells embedded in the wall of the rectum and which can cause severe constipation. After two unsuccessful medical procedures, he underwent an open proctosigmoidectomy—the goal of which was to remove the diseased portion of his rectum—performed by a physician at a medical facility.

 

The man sued alleging medical malpractice and lack of informed consent, based upon the claim that he suffered permanent erectile dysfunction as a result of the surgery. Following discovery, the medical center moved for summary judgment. The medical center submitted, among other evidence, a medical expert's affidavit with the expert's name redacted as evidence to support the summary judgment motion. The medical center also submitted an unredacted version of the affidavit for the trial court’s in camera review. The Montgomery County Supreme Court denied the medical center's motion for summary judgment dismissing the complaint.

 

The Appellate Division of the New York Supreme Court, Third Department, affirmed. The court held that the submission of a medical expert’s affidavit with the expert’s name redacted was incompetent evidence to support a motion for summary judgment, the medical center failed to meet its initial burden establishing that it was entitled to summary judgment dismissing the negligence-based medical malpractice cause of action, and the medical center was not entitled to summary judgment on the cause of action for lack of informed consent.

 

The submission of a medical expert's affidavit with the expert's name redacted was incompetent evidence to support their summary judgment motion. In order to establish a prima facie entitlement to judgment as a matter of law, the medical center was required to tender sufficient, competent, admissible evidence demonstrating the absence of any genuine issue of fact. Because the medical center was the movant for summary judgment, its submission of an anonymous expert affidavit was incompetent evidence not proper for consideration upon the motion. The court noted that the legislature had shown no broad intention of protecting experts from accountability at the point where their opinions are employed for the purpose of judicially resolving a case or a cause of action. Further, the court reasoned that the benefits of anonymity would not outweigh the benefit that accountability provides in promoting candor. Requiring a movant to reveal an expert's identity in such circumstances would allow a nonmovant to meaningfully pursue information such as whether that expert has ever espoused a contradictory opinion, whether the individual is actually a recognized expert and whether that individual has been discredited in the relevant field prior to any possible resolution of the case on the motion.

 

The medical center failed to meet its initial burden establishing that it was entitled to summary judgment dismissing the negligence-based medical malpractice cause of action. To meet this initial burden, the medical center was required to establish either that there was no departure from accepted standards of practice in the man's treatment or that any such deviation did not injure him. A physician's sworn statements can be sufficient to meet this initial burden, provided that they are detailed, specific and factual in nature. The medical center's competent submissions, including, among other things, medical records and deposition testimony from the physician who treated the man, failed to establish either that the physician provided care that did not depart from accepted standards of practice or that the care did not injure the man.

 

The medical center was not entitled to summary judgment on the cause of action for lack of informed consent. In order to meet its burden on this cause of action, the medical center was required to establish either that the practitioner disclosed the risks, benefits and alternatives to the procedure or treatment that a reasonable practitioner would have disclosed or that a reasonable person in the man's position, fully informed, would have elected to undergo the procedure or treatment. The testimony provided by the man’s treating physician did not specifically establish either that the risks, benefits and alternatives to the surgery that he claimed to have explained to him were also the ones that a reasonable practitioner would have disclosed or that a reasonable person, so informed, would have elected for the surgery rather than the other options described in the testimony, one of which included leaving everything alone. In any event, even if the medical center had met its burden on either of these issues, the man raised material issues of fact as to each. Inasmuch as the medical center’s submissions conceded that a warning was necessary regarding the potential injuries to nerve cells that controlled the intimate function of the penis and asserted that such a warning was given to the man, his contradictory testimony that no such warning was ever given to the man was sufficient to demonstrate a triable question of fact on that issue. Further, the man’s testimony that he would not have chosen to have the surgery had he been properly informed of the risk of sexual dysfunction was sufficient to raise a triable issue of fact as to whether a fully informed reasonable person would have elected for the surgery.

 

The Appellate Division of the New York Supreme Court, Third Department, affirmed the trial court’s denial of the medical center's motion for summary judgment dismissing the complaint.

 

See: Rivera v. Albany Medical Center Hosp., 2014 WL 3360346, 2014 N.Y. Slip Op. 05236 (N.Y.A.D. 3 Dept., July 10, 2014) (not designated for publication).

 

 

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