Over the past fifteen years, summary judgment motions filed by defendants in medical malpractice cases have experienced an increased likelihood of success, with the crux of the motion dependent upon expert opinion. Generally, summary judgment motions must show that there are no material facts at issue and as a matter of law, the moving party is entitled to a judgment in their favor. In the context of medical malpractice cases, the evidence would need to prove that the defendant did not deviate from the requisite standard of care and if so, such a deviation was not a proximate cause of plaintiff’s injury.
With recent trends indicating that courts are frequently ruling in favor of the defendants, summary judgment motions have become a pivotal moment in the pre-trial stage. As these motions almost entirely rely on expert opinion, it is critical to understand the standard of proof for both parties and how an expert can help.
The Standard of Proof
The proponent of a motion for summary judgment is required to make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact. The defendant must refute the plaintiff’s claims of medical malpractice “by specific factual reference.” See Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986).
In a medical malpractice action, a plaintiff, in opposition to a defendant physician’s summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating the plaintiff so as to demonstrate the existence of a “triable issue of fact.” Id. Thus, if a defendant’s motion establishes a prima facie showing, the burden is then shifted to the plaintiff to establish the existence of material issues of fact. However, if the defendant fails to make such a showing, the motion should be denied, regardless of the sufficiency of the opposing party’s argument. See Winegrad v. New York Univ. Medical Center, 64 N.Y.2d 851 (1985). As such, the plaintiff only needs to produce evidentiary proof of material questions of fact so that a judgment, as a matter of law, cannot be rendered. See Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). The plaintiff need not prove their case and all reasonable inferences must be drawn in favor of the nonmoving party. Assaf v. Ropog Cab Corp., 153 A.D.2d 520 (1st Dept. 1989).
What Constitutes a Material Issue of Fact? A Battle of the Experts
Oftentimes, the sufficiency of a defendant’s summary judgment motion (and the plaintiff’s opposition), hinges on expert opinion submitted in the form of an affidavit. As has begun to be typical in these cases, summary judgment motions are granted when the plaintiff’s expert opinion establishing material issues of fact is deemed to be “inadequate,” with courts routinely describing such oppositions as conclusory. However, it is sometimes difficult to gauge exactly what makes an expert’s opinion deficient. Thus, it is important to keep in mind the definition of material issue of fact in the context of medical malpractice.
If the affidavit of the plaintiff’s expert is sufficient to raise triable issues of fact as to negligence, summary judgment is precluded. See Somoza v. St. Vincents Hospital and Medical Center of New York, 192 A.D.2d 429 (1st Dept. 1993). The issue of whether the defendant doctor’s negligence is more likely than not a proximate cause of a plaintiff’s injury is usually for the jury to decide. See Stewart v. New York Health & Hosps. Corp., 207 A.D.2d 703, 704 (1st Dept. 1994). If both experts have provided affidavits of equal strength, supported by the facts in the record and which set forth opinions with a reasonable degree of medical certainty, then competing opinions as to causation would not warrant summary judgment as a matter of law.
For example, where oncological experts present competing opinions on causation, particularly about the progression of the disease, there is an issue of fact for a jury to decide. See Polanco v. Reed, 105 A.D.3d 438, 441, 963 N.Y.S.2d 57, 60 (1st Dept. 2013) (held that the lower court erred in granting summary judgment by erroneously deciding a disputed issue of fact, i.e., whether the defendants’ departure from accepted medical standards of practice could not have caused plaintiff’s metastatic breast cancer). Similarly, whether a diagnostic delay affected a patient’s prognosis is typically an issue that should be presented to a jury. See Meth v. Gorfine, 34 A.D.3d 267 (1st Dept. 2006).
In a recent New York Court of Appeals case, Brooks v. April, 2018 WL 2931000, the Court reversed the Appellate Division’s split decision granting summary judgment to a defendant doctor. While the Court of Appeals decision was brief, only stating that the plaintiffs’ submissions rebutted the defendant’s prima facie showing, the dissent in the Appellate Division’s decision provides useful guidance as to the sufficiency of expert opinion during summary judgment. In Brooks, the plaintiff injured her head from a fall. Ten days later, she visited the defendant neurologist, complaining of headaches. After conducting a CT scan and follow-up examinations, the defendant concluded the plaintiff suffered from post-concussion headache syndrome. The plaintiff subsequently contacted the defendant again, complaining of increased pain and vision problems. After performing a neurologic examination and conducting an electroencephalogram, he diagnosed plaintiff with a migraine, in light of her personal and family history. Plaintiff immediately sought a second opinion. An MRI was conducted which indicated that she suffered from a brain hemorrhage, the results of which were confirmed by a neurosurgeon. After consulting with a radiologist and another neurologist, testing eventually revealed an arteriovenous malformation which required surgery.
The defendant neurologist submitted a 16-page affirmation from a neurologist stating that defendant had not deviated from the requisite standard of care, that it was appropriate to conclude plaintiff was suffering from post-concussion syndrome, and that neither an MRI nor a cerebral angiogram were warranted. The plaintiff submitted a 20-page affirmation from a neurologist which stated that the defendant departed from the standards of care in multiple respects, “which resulted in a delay in diagnosis and treatment that proximately caused her permanent neurological deficits.” The primary departure attributed to defendant was his failure to perform a differential diagnosis.
The Supreme Court denied defendant’s motion and the Appellate Division reversed, citing that the plaintiff’s expert’s affirmation, which stated noninvasive testing would have led to an earlier diagnosis, was conclusory and without evidentiary substantiation. The dissent disagreed, holding that there was no dispute that an angiogram would have revealed the injury, and that the plaintiff’s expert “creates a question of fact as to whether defendants should have performed a differential diagnosis before the AVM advanced to the point where it caused permanent neurological damage.” Overall, the Court of Appeals’ reversal of the Appellate Division’s decision gives credence to the dissent and helps establish further precedent concerning plaintiff’s burden during summary judgment.
However, the decision in Brooks does not negate the recent trends seen in summary judgment motions, which indicate a greater likelihood of defense success. It has been surmised that this is mostly due to increased judicial scrutiny of plaintiff’s expert affidavits. Thus, it is critical to keep in mind the applicable standards of proof and ensure that your expert affidavit is accordingly substantiated.