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.
Evaluating the Sufficiency of an Expert Report
After reviewing the evidence presented by the parties, the court granted the motion. Under New York law, a party moving for summary judgment must show its entitlement to judgment in its favor by showing there are no material issues of fact. Thus, in the subject case, the defendant was required to produce evidentiary proof in the form of an expert opinion that established that the defendant did not depart from the accepted standard of care, and therefore, his behavior did not proximately cause the plaintiff’s harm.
The court found that the defendant met his burden, and as such, the burden shifted to the plaintiff. The plaintiff, however, produced an expert report that failed to address the opinions set forth in the defendant’s expert report and instead alleged new theories of liability. The court found this to be improper and insufficient to defeat the defendant’s motion. Thus, the court dismissed the plaintiff’s claims.
Speak with a Dedicated Syracuse Lawyer
Orthopedic surgery presents some degree of risk, but in many cases in which a person develops complications following a procedure, it is due to orthopedic malpractice. If you suffered harm due to the negligence of an orthopedic surgeon, you should speak to an attorney about your possible claims. At DeFrancisco & Falgiatano Personal Injury Lawyers, our dedicated attorneys have the skills and experience needed to help you seek favorable results, and we will work tirelessly on your behalf. You can reach us via our online form or at 833-247-8427 to set up a meeting.