In Pullman v Silverman (No. 151), a medical malpractice action concerning the alleged negligent administration of Lipitor and azithromycin which the plaintiff claims caused him to suffer a cardiac arrhythmia that progressed to the point of requiring placement of a permanent pacemaker, the Court held that the defendant’s expert medical affidavit was insufficient to meet its prima facie burden to establish judgment as a matter of law because it did not address, beyond conclusory assertions, how the two drugs when combined could not have proximately caused the plaintiff’s condition. It’s a straightforward opinion concerning the defendant’s failure of proof on summary judgment.
What is interesting, however, is that the Court foreshadows a split between the Appellate Division departments concerning the burden on summary judgment in medical malpractice cases that will need to be resolved in a future case. As Judge Fahey points out in his concurring opinion, the First Department and Second Department are split on what must be shown in opposition to summary judgment when the defendant establishes that one of the elements of the medical malpractice claim fails. The First Department has held that where the defendant doctor shows that he or she did not depart from the standard of care or that his or her action was not the proximate cause of the patient’s injury, the plaintiff patient must establish triable issues of fact with respect to both elements. The Second Department, in contrast, holds that the plaintiff patient’s burden is lighter than the First Department requires: the patient need only show an issue of fact relating to the one element that the defendant doctor established was lacking. Because the parties in Pullman did not directly address the proper standard on summary judgment in their briefs, however, the Court declined to address it here, leaving it instead to determination in a properly presented issue in a future case.
Medical malpractice attorneys be aware, this issue will likely be addressed by the Court in the near future. So, if you have a case where the issue is properly presented, be sure to fully brief the split and you may well find yourself at counsel’s table arguing a decision that could impact medical practice litigation for years to come.
The Court of Appeals’ decision in Pullman v Silverman can be found here.