MEDICAL MALPRACTICE DEFENDANT DOCTOR LOSES HIS SUMMARY JUDGMENT MOTION TO DISMISS CASE; FAILS TO MEET HIS BURDEN

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Michael Caggiano v. David Cooling

Date: Feb. 7, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury lawyer)

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Comment: Defendant doctor in a medical malpractice case asks the court to award him summary judgment, dismissing plaintiff's complaint. The doctor's motion is denied. This doesn't mean that he loses the case, just that the plaintiff's claim goes forward to trial.

The reason for the doctor's loss turns on a technical quirk of New York summary judgment practice, which may not be the best way to litigate these things, policy-wise.

The court restates the rule, that to prove and win a medical malpractice case the plaintiff must prove a departure from good medical practice, and that he was damaged or injured as a result of that departure.

However, New York summary judgment motion practice flips this burden around on its head.

The appeals court states the rule: "On a motion for summary judgment, a defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby." To add to the moving party's burden, when faced with a motion for summary judgment (the court points out) the nonmoving party gets the benefit of having the court view the evidence in "the light most favorable" to it. Does this make it hard for this doctor to win. Yes, it does.

The good doctor failed in his burden as moving party, so that the court does not even have to consider the strength of the case against him. He loses his motion, without ever really getting into the game, so to speak. Plaintiff's opposition papers don=t even have to be considered.

Defense summary judgment motion denied; plaintiff's medical malpractice case goes forward, ultimately to a trial.

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