New York Reverses Summary Judgment When Defendants’ Expert Affidavits Did Not Address Proximate Cause of Plaintiff's Osteomyelitis

A man fractured a bone. Following the repair of his bone, the man received post-operative care provided by a doctor specializing in orthopedics. The man developed osteomyelitis, a bone infection caused by bacteria or other germs.


The man sued a number of defendants including the doctor and her practice group for medical malpractice. The doctor and her practice group filed a motion for summary judgment. The Suffolk County Supreme Court denied the doctor's motion for summary judgment.


The Appellate Division reversed the lower court holding that the doctor and practice group's motion for summary judgment dismissing the complaint should have been granted. The court reasoned that the defendants submitted affirmations from expert physicians that were sufficient to make a prima facie case that the post-operative care the man received following the repair of his bone fracture did not depart from good and accepted standards of medical practice. Moreover, the expert physicians’ affirmations showed that any alleged departures did not proximately cause the osteomyelitis. Conversely, the patient submitted an affirmation from an expert physician that raised triable issues of fact as to whether the doctor and her practice group may have departed from good and accepted practice, but it failed to raise a triable issue of fact as to whether the alleged departures proximately caused the osteomyelitis.


The Court of Appeals of New York reversed holding that the Appellate Division erred in granting summary judgment on the issue of proximate cause. An affirmation of the defendants’ counsel preserved proximate cause for review. However, it was not addressed in the experts' affidavits that the defendants submitted in support of their summary judgment motion. These defendants thus failed to meet their initial burden of showing that any departure from the standard of care was not the proximate cause of the plaintiff's osteomyelitis.


See: Orsi v. Haralabatos, 2013 WL 1195640, 2013 N.Y. Slip Op. 01993 (N.Y., March 26, 2013), reversing Orsi v. Haralabatos, 89 A.D.3d 997 (N.Y.A.D. 2 Dept.  Nov 22, 2011).