Commercial Division Blog

Posted: September 27, 2021 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Summary Judgment

Conflicting Expert Opinions Sufficient to Defeat Summary Judgment in Medical Malpractice Case

On May 2, 2019,  Justice Jamieson of the Westchester County Commercial Division issued a decision in Casola v Northern Westchester Hosp. Assn., 2019 NY Slip Op 34199(U), holding that in a medical malpractice case competing expert opinions create a triable issue of fact sufficient to defeat a motion for summary judgment, explaining:

It is well-settled that "A defendant seeking summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries." Aliosha v. Ostad, 153 A.D.3d 591, 592, 61 N.Y.S.3d 55, 56-57 (2d Dept. 2017). Dr. Karas has made such a showing here. His expert, Dr. Kavanagh, stated that the assessment of a post-operative patient for the likelihood of developing pressure ulcers is a nursing function; the use of the CPM machine was a nursing function; and the monitoring of the CPM machine was a nursing function. Dr. Kavanagh stated that when plaintiff complained to Dr. Karas about heel pain, Dr. Karas noted the heel sores and "ordered heel precautions and then deferred to the nurses and the wound care providers for treatment." Dr. Kavanagh determined that all of the malpractice alleged is a nursing function, and that it was perfectly appropriate for Dr. Karas to rely on the nursing staff.

In response to this prima facie showing, plaintiff's expert, Dr. Brenner, states that the day after the injury to plaintiff's heel began, Dr. Karas' notes "state no risk for skin breakdown." The next day, although plaintiff complained of heel pain, and Dr. Karas noted pressure sores there, he "continued to note no risk for skin breakdown." He did not order a wound consult, but left it up to the nursing staff. Dr. Brenner concludes that as plaintiff's treating orthopedist, Dr. Karas was responsible for monitoring plaintiff's care during the admission, particularly the leg on which he had done the knee replacement. He states that "the development of a deep tissue injury and pressure ulcer does not fall solely on the responsibility of the nursing staff of the hospital. Dr. Karas had the responsibility to inspect Mr. Casola's heels and order wound consult's [sic] if needed." It is thus clear that the experts differ on whether Dr. Karas was required to oversee the heel care, or whether it was something that was appropriately designated entirely to the nursing staff. As the Second Department has stated, "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions." Henry v. Sunrise Manor Ctr. for Nursing & Rehab., 147 A.D.3d 739, 740-41, 46 N.Y.S.3d 649, 651 (2d Dept. 2017). "Such conflicting expert [* 3] opinions will raise credibility issues which can only be resolved by a jury." Fink v. DeAngelis, 117 A.D.3d 894, 896, 986 N.Y.S.2d 212, 214 (2d Dept. 2014).

The attorneys at Schlam Stone & Dolan frequently litigate civil cases involving tort claims and successfully briefing motions for summary judgment.

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