In medical malpractice matters, the evidentiary burden shifts between the parties. Specifically, the plaintiff must allege with particularity the manner in which the defendant departed from the standard of care, after which the burden is on the defendant to set forth an expert affidavit refuting each of the plaintiff’s allegations. The burden then shifts back to the plaintiff, who must provide an expert affirmation addressing each of the defendant’s contentions. If the plaintiff’s expert does not opine on each of the defendant’s expert’s contentions, though, it is likely the plaintiff’s claim will be dismissed, as shown in a recent New York ruling issued in an orthopedic malpractice case. If you were injured by a negligent orthopedist, you should meet with a Syracuse medical malpractice lawyer as soon as possible to evaluate your options.
The Plaintiff’s Allegations
It is reported that the plaintiff underwent knee surgery in 1999 that was performed by a doctor other than the defendant. The procedure required screws and other hardware to be placed in the plaintiff’s knee. Following the surgery, he had progressively worsening knee pain, which he reported to the defendant. The plaintiff required multiple subsequent procedures to remove the hardware in his knee, which were performed by the defendant.
Allegedly, the plaintiff then underwent a total knee replacement, during which the defendant noted that a screw from an earlier surgery was lodged in a bone and was inaccessible, and therefore, could not be removed. The screw ultimately became infected, and the plaintiff had to undergo numerous additional surgeries to address the infection. He then filed a medical malpractice lawsuit against the defendant, alleging the failure to remove the screw constituted negligence. The defendant moved for summary judgment. Continue reading