The opportunity to dispute merit in medical malpractice defense provides an important tool for the representation of your client. The liberal notice pleading and lenient approach to the content of bills of particulars which prevail in New York practice are such that ill-developed and speculative claims are almost impossible to weed out before the conclusion of discovery. The inefficiency of this approach frequently requires years of discovery within the poorly articulated and practically limitless bounds of the pleadings, before the court has the ability to address the sufficiency of the allegations. When the time arrives, the defense has to be ready.
At infrequent intervals which defense counsel must be ready to seize upon, the court will require that plaintiff demonstrate merit to the underlying claims in order to move forward. The simplest situation involves the case which is stricken from the calendar to be restored on motion. Pursuant to CPLR Rule 3404, the motion must be made within a year, or plaintiff’s counsel must then overcome the presumption of abandonment in moving to vacate the dismissal and restore the case to the calendar. Friedberg v. Bay Ridge Orthopedic Assoc., 122 A.D.2d 194 (2d Dept. 1986). With either motion, plaintiff is obligated to establish a meritorious claim. By uniform court decisions, this requires support of a medical expert. The quality of that support is pivotal, in that the expert affidavit must not be conclusory but must carry evidentiary weight. The physician’s affidavit must specify which acts of the particular defendant constituted departures from the standard of care, and how those acts caused the patient’s injuries. DeRosario v. NYCHHC, 22 A.D.3d 270 (1st Dept. 2005), Wulster v. Rubenstein, 126 A.D.2d 545 (2d Dept. 1987). No quantity of deposition testimony or medical records will suffice to establish merit in the absence of the sworn statement of an expert who makes specific observations as to the treatment performed and how the alleged improprieties caused the claimed injury. Nepomniaschi v. Goldstein, 182 A.D.2d 743 (2d Dept. 1992). Along with the other requirements of support for the motion, this affidavit must be authored by an expert whose credentials would support trial testimony. Iazzetta v. Vicenzi, 243 A.D.2d 540 (2d Dept. 1997).
The same approach is seen in the courts that address conditional orders of preclusion for failure to serve a bill of particulars. In Fiore v. Galang, 64 N.Y.2d 999 (1985), the Court of Appeals sustained the dismissal of the complaint based upon the inadequacy of the plaintiff’s expert affidavit of merit. Expert medical opinion evidence is required to demonstrate merit, and the court will examine the sufficiency of the evidentiary support for the claim. Where the expert does not give evidentiary support for the departure from accepted standards of practice and its causal relationship to the claimed injury, the evidence of merit is insufficient. Perez v. Astoria Gen. Hosp., 260 A.D.2d 457 (2d Dept. 1999). Likewise, a motion to vacate a dismissal based upon the plaintiff’s failure to appear for scheduled jury selection requires the same specificity from the expert with respect to the treatment by the defendant and how it fell below the accepted standard of care. Bollino v. Hitzig, 34 A.D.2d 711 (2d Dept. 2006). In Chiaramonte v. Coppola, 81 A.D.2d 426 (1st Dept. 2011), a default judgment was entered against plaintiff for failure to appear at a scheduled status conference. The lower court had vacated the default and reinstated the complaint, but the Appellate Division unanimously reversed and dismissed the complaint based upon the deficiencies in the affidavit of merit, expressing skepticism as to the expert’s knowledge of the matter.
The reticence of the courts to address the sufficiency of the claims in the complaint or bills of particulars has produced a wealth of decisions on summary judgment motions after discovery has been completed. Once moving counsel has shown by competent evidence a prima facie entitlement to judgment on one or more issues, the burden shifts to the plaintiff to come forward with an affidavit of merit which demonstrates the existence of a justiciable question of fact. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986).
Although it does not involve a medical malpractice case, the court in Romano v. Stanley, 90 N.Y.2d 444 (1997) provides a bit more insight into the judicial determination of merit than is usually available in the summary judgment context. The Supreme Court as well as the Appellate Division had denied summary judgment for two defendants in a Dram Shop Act case with medical issues and a patron later involved in a fatal accident. In reversing the lower courts, the Court of Appeals focused upon the absence of any evidence of a basis in science or experience for the expert’s conclusions regarding the blood alcohol levels of the driver when she was present in the defendants’ restaurants. The court found that the expert input was not based upon objective evidence such as blood tests, but rather consisted of speculative conclusions, and as such there was nothing before the court from which the validity of the ultimate conclusions could be inferred. Id. at 445. The court held that an expert’s affidavit serving as the evidence to defeat a motion for summary judgment “… must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent’s favor.” Id. at 452.
More recently, the same court rejected an affidavit of merit in which an expert argued against a hospital’s summary judgment motion that “guidelines” issued by two national radiological organizations created a standard of care. In the suit against the hospital, it was claimed that an ultrasound technician had assaulted a patient during an unchaperoned procedure. The unanimous court held that the expert affidavit did not raise a question of fact as to the existence of an accepted industry practice or standard. The lack of probative force of the affidavit of merit rendered it insufficient as a matter of law to overcome the motion to dismiss the negligent supervision claim. Diaz v. New York Downtown Hospital, 99 N.Y.2d 542 (2002).
In an interesting case decided in the Second Department the same year, the court held that the plaintiff’s affidavit of merit was insufficient to the point that it could not determine whether the expert had read the defendants’ hospital and medical records or not. In Wilson v. Buffa, 294 A.D.2d 357 (2d Dept. 2002), the court held that the expert’s affidavit was entirely conclusory, failing “… to establish the elements of a medical malpractice claim by specific factual references to the care and treatment of the plaintiff.”
Not only did the court dismiss the complaint as to the moving physician, it searched the record as to the non-appealing defendant hospital and dismissed that claim as well.
Proof of causation is integral to the sufficiency of the affidavit of merit. In Mohahan v. Weichert, 82 A.D.2d 102 (4th Dept. 1981), it was held that the trial court properly dismissed the claim as against the hospital defendant because it had not been proven that the alleged deficiencies in the record keeping function of the hospital were causally related to the plaintiff’s injury. The court held that unless causal relationship is readily apparent to the trier of fact, expert witness support is required to establish proximate cause and make out a prima facie case of malpractice. Id. at 107. This principle has been employed to support defense motions for judgment as a matter of law both during and after trial. See LaPierre v. Efron, 22 A.D.3d 808 (2d Dept. 2005); Abrams v. Ho, 3 A.D.3d 544 (2d Dept. 2004).
The most frequent evaluation of affidavits of merit occurs in summary judgment motion practice. In a case in which a consulting perinatologist advised an obstetrician to deliver a premature fetus immediately, but the obstetrician decided to wait, the court reversed the denial of the consultant’s summary judgment motion and dismissed the claim against him based upon the plaintiff’s failure to fully address the causation argument. See Malone v. Kim, 96 A.D.3d 477 (1st Dept. 2012). A similar result was obtained by the defendants in a liver transplant case, solely on the issue of proximate cause, due to the deficiency in the plaintiff’s affidavit of merit which the court found to contain bare, conclusory allegations based on pure speculation. See White v. Southside Hospital, 5 A.D.3d 677 (2d Dept. 2004). A deficient affidavit of merit on proximate cause was also cited as a basis for sustaining the dismissal of a case involving gastric bypass surgery and delayed perforation in Nguyen v. Dorce, 125 A.D.3d 571 (1st Dept. 2015).
The judicial approach to the sufficiency of the affidavit of merit which is required to support a medical malpractice claim is uniform in the case law of New York. The defense attorney must know the principles and how to apply them when the opportunity first presents itself.
This article is also on Law.com: Litigating Merit in Malpractice Cases