EMAIL TO A FRIEND COMMENT

 

Redacted and Unsigned Affidavit of Plaintiff’s Medical Expert Properly Rejected


A woman presented to the emergency room. She was treated by two first-year medical residents and a nurse. She was physically examined, diagnosed, and discharged from care.

 

The woman sued the two first-year medical residents and nurse for medical malpractice. The complaint alleged that the two first-year medical residents and nurse failed to diagnose and treat her bacterial meningitis. The woman submitted a redacted and unsigned affirmation of her medical expert. She offered no explanation for the failure to identify the expert by name or the failure to offer an unredacted affirmation for in camera review.

 

On the defendant’s motion for summary judgment, the two first-year medical residents and nurse submitted deposition testimony, hospital records, and the affirmation of their medical expert establishing that at all times they acted under the direction and supervision of the attending physicians and that they lacked the authority to independently order tests and medication. They also demonstrated that the diagnosis and treatment plan implemented and continued under the supervision of the attending physicians did not include orders so clearly contraindicated by normal practice that ordinary prudence required inquiry into the correctness of the orders.

 

The Suffolk County Supreme Court granted summary judgment dismissing the complaint as asserted against the two first-year medical residents and the nurse.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed. The court held that the two first-year medical residents and nurse sustained their burden of making a prima facie showing of their entitlement to judgment as a matter of law, and the woman failed to raise a triable issue of fact.

 

The court held that the two first-year medical residents and nurse sustained their burden of making a prima facie showing of their entitlement to judgment as a matter of law. The two first-year medical residents and nurse submitted deposition testimony, hospital records, and the affirmation of their medical expert establishing that at all times they acted under the direction and supervision of the attending physicians and that they lacked the authority to independently order tests and medication. They also demonstrated that the diagnosis and treatment plan implemented and continued under the supervision of the attending physicians did not include orders so clearly contraindicated by normal practice that ordinary prudence required inquiry into the correctness of the orders.

 

The woman failed to raise a triable issue of fact; expert affidavit insufficient. The trial court properly rejected the redacted and unsigned affirmation of the woman’s medical expert where the woman offered no explanation for the failure to identify the expert by name or the failure to offer an unredacted affirmation for in camera review. Accordingly, that affidavit was insufficient to raise a triable issue of fact as to the alleged malpractice. The woman’s expert made no assertion that the residents and nurse exercised independent medical judgment, nor did he dispute that the residents and nurse were at all times operating under the supervision and direction of the attending physicians. Further, that expert's vague and conclusory statements failed to establish that the residents and nurse knew or should have known that the orders of the attending physicians were so clearly contraindicated by normal emergency department practice as to raise a triable issue of fact as to whether ordinary prudence required inquiry into the correctness of the orders.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed the trial court’s grant of summary judgment dismissing the complaint as asserted against the two first-year medical residents and a nurse.

 

See: France v. Packy, 2014 WL 5151406, 2014 N.Y. Slip Op. 06939 (N.Y.A.D. 2 Dept., October 15, 2014) (not designated for publication).

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care

 

 

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