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Plaintiff’s Medical Expert’s Conclusory Affidavit Insufficient to Overcome Summary Judgment in Malpractice Action


A woman went to an obstetrician because she thought she was pregnant. During the examination the woman said she had previously had an “abdominal pregnancy” and “lost the baby.” Urine tests for pregnancy were negative. The doctor did not order a blood test for pregnancy. The doctor diagnosed her with an infection and prescribed antibiotics, which were safe for pregnant patients.  Nine days later the woman went to the emergency room complaining of acute abdominal pain. A blood test for pregnancy was performed and was positive. An ultrasound was performed but did not show an embryo. It was surmised that the woman was experiencing an ectopic pregnancy. Exploratory surgery revealed an ectopic pregnancy where the embryo adhered to the appendix and that the appendix had burst. 

 

The woman sued the obstetrician for negligence for failing to diagnose the ectopic pregnancy. To establish medical negligence a plaintiff must show that the treatment deviated from the standard of care and the treatment was the proximate cause of the plaintiff’s injuries. The motions court denied defendant obstetrician’s motion for summary judgment. The obstetrician appealed.

 

The affidavit from the obstetrician’s expert explained that the pregnancy hormone levels revealed in the blood test at the emergency room were very low. Had the obstetrician performed a blood test nine days earlier, the hormone levels would have been even lower, indicating a very early pregnancy, less than four weeks. Most doctors would not have ordered an ultrasound that early in a pregnancy. Moreover, even if the obstetrician had done the blood test and the ultrasound, he still may not have found the location of the ectopic pregnancy.

 

However, the affidavit from the woman’s expert stated, without explanation, that the obstetrician’s treatment deviated from the standard of care and caused the patients harm. 

 

The appellate division of the New York Supreme Court noted that generally, the opinion of a qualified expert that a plaintiff's injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants in a medical malpractice action. And, if an expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, the opinion should be given no probative force and is insufficient to withstand summary judgment.

 

The court noted the antibiotic prescribed was appropriate to treat the gynecological infection, even in a pregnant woman, and it did not contribute to either the adhesion of the ectopic pregnancy to the appendix, or to the appendiceal rupture. And, the standard of care would not have required an ultrasound for another four weeks, and a pregnancy test would not have determined the location of the pregnancy or indicated that the pregnancy was ectopic.

 

The appeals court reversed the lower court holding that the defendant obstetrician’s expert presented sufficient evidence that his treatment was within the standard of care and was not the proximate cause of the woman’s harm. The court found the expert testimony provided by the woman was conclusory as to whether the treatment was within the standard of care, and it failed to rebut the obstetrician’s expert regarding no proximate causation.

 

See: Foster-Sturrup v. Long, 95 A.D.3d 726, 945 N.Y.S.2d 246 (N.Y.A.D. 1 Dept., May 29, 2012).

 

 

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