Plaintiff’s Medical Malpractice Case Dismissed due to Expert’s Use of Unproven Medical Opinion

The New York Supreme Court, Appellate Division, First Department affirmed a trial judge’s order that granted the defendant’s motion for summary judgment, dismissing a medical malpractice complaint.

The plaintiff was prescribed Lipitor and Azithromycin. Lipitor is FDA-approved to treat high cholesterol. Azithromycin is an anti-biotic used to treat bacterial infections. The plaintiff later suffered from bradycardia. Bradycardia is a slower than normal heart rate. The heart sends electrical signals between the upper and lower chambers of the heart that instruct the heart to contract. This is referred to as a heart beat. The upper chamber is called the atria, and the lower chamber is called the ventricle. When these electrical signals are blocked, the blockage is known as an atrioventricular block. Atrioventricular block can lead to fainting, dizziness, shortness of breath, and chest pain. The slowed heart beat can also lead to heart attack and death.

The plaintiff in this case suffered from atrioventricular block. He then filed a medical malpractice lawsuit against the prescribing physician, alleging that the two prescription medications had caused her condition. The defendant filed a motion for summary judgment, alleging that the plaintiff had failed to raise a triable issue of fact by failing to meet the requirements of medical malpractice lawsuits in New York. The trial judge agreed and dismissed the case. The plaintiff appealed, and the First Department affirmed the trial judge’s decision.

When a defendant doctor files a motion for summary judgment in a medical malpractice lawsuit, he must establish in his motion that he has a prima facie entitlement to judgment as a matter of law because he used accepted medical practices to treat the plaintiff. Doctors owe a duty of care to their patients. This duty is to provide good and accepted medical treatment to their patients. If a doctor deviated from this treatment, either by employing a radical and unpopular treatment or by failing to act, the doctor can be liable for medical malpractice injuries.

Medical malpractice lawsuits require medical evidence and expert testimony. Not only must the medical records be examined and analyzed, but an expert will need to testify at trial and state whether, based on their expertise, the defendant had breached the duty of care. Because medicine is a very complex profession that requires years of education and training, courts rely on these medical experts to educate the jury on what exactly is accepted medical practice.

In a motion, the defendant can support his or her defense through affidavits, medical records, reports, and more. If the doctor meets the burden and establishes he did not depart from good and accepted medical practices, then the burden shifts to the plaintiff to show that there is a triable issue of fact in the case. This rebuttal also requires medical evidence that demonstrates both that the treatment departed from accepted medical practices and that this departure proximately caused the defendant’s injuries. If the plaintiff submits the opinion of a qualified expert and that opinion states that the injuries were indeed the product of a departure from accepted medical practices, then the motion for summary judgment will be denied, and the case will proceed to trial.

However, if the plaintiff’s expert’s opinion falls outside accepted medical practice, it will be given no weight. Under what is known as the Frye test, scientific theories or medical procedures will only be accepted by the court as valid if they are generally accepted by the medical or scientific community. If the expert’s opinion is unproven or not accepted by peers, the court cannot rely on that opinion for the basis of the plaintiff’s opposition.

Here, the plaintiff’s expert stated that the combination of Lipitor and Azithromycin caused heart block. The plaintiff also submitted case studies and articles that stated that some individuals suffer side effects from the two drugs. However, none of the cases linked the drugs to heart block. In addition, the court does not rely on case studies in making its decision. The Court found that the expert’s opinion was not accepted in the medical community and was instead premised upon case studies that found no causal connection. As such, the doctor’s motion for summary judgment was properly granted.

If you or a loved one suffered an injury during a medical operation or while in the hands of a doctor or nurse, you may have a valid medical malpractice claim. Call Gallivan & Gallivan to discuss your right to compensation.

Pullman v. Silverman, 125 AD3d 562 (1st Dept. 2015).

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