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A medical malpractice suit lodged by a stroke victim who fell from his hospital bed has been reinstated because his expert sufficiently rebutted opposing experts claiming that the hospital and a treating physician never departed from accepted standards of practice.

In reversing the trial court's dismissal, an Appellate Division, Second Department, panel ruled that stroke victim Francisco Salgado “raised triable issues of fact” regarding whether North Shore University Hospital's Medical Intensive Care Unit and treating physician Dr. Peter Reiser “departed from accepted standards of practice by failing to prevent Salgado from falling out of bed and whether his injuries were exacerbated by his fall.”

Salgado and his wife—who sued derivatively—presented a medical expert who “opined that the monitoring and precautions against falls implemented by the hospital in its Medical Intensive Care Unit departed from accepted standards of practice because, given the medical condition noted in Salgado's chart, i.e., 'calm' and 'lethargic' with no right hand grip or right arm or leg movement early the same day, Salgado's fall could not have occurred unless restraints were improperly applied,” the panel said.

Moreover, the expert opined in an affirmation that the fall caused Salgado damage because “the increase in the size of Salgado's intercranial hemorrhage from the morning of the fall, accompanied by the new onset of midline shift, was too extensive and rapid in onset to be due solely to the natural progression of Salgado's original hemorrhage,” wrote the panel.

The Dec. 26 decision by the unanimous panel reversed Westchester Supreme Court Justice Charles Wood's 2016 decision granting summary judgment dismissal of the action as to defendants North Shore University Hospital and Reiser.

The panel, composed of Justices John Leventhal, Cheryl Chambers, Leonard Austin and Jeffrey Cohen, wrote that Salgado had been admitted to North Shore University Hospital, located on Long Island, in Manhasset, due to stroke symptoms and that he later fell from his bed.

Salgado and his wife sued multiple defendants, including the hospital and Reiser, the panel said.

The justices explained, quoting Lesniak v. Stockholm Obstetrics & Gynecological Servs., that in order to move for summary judgment, a physician defendant must establish prima facie “either that there was no departure [from accepted standards of practice] or that any departure was not a proximate cause of the plaintiff's injuries.”

If the prima facie showing is made, the burden shifts to the plaintiff to rebut it “with evidentiary facts or materials 'so as to demonstrate the existence of a triable issue of fact,'” the panel added, quoting Salvia v. St. Catherine of Sienna Med. Ctr.

In Salgado's action, the hospital and Reiser met the prima facie burden by submitting two experts' affirmations, opining that there was no departure or proximate causation, the panel wrote.

But Salgado and his wife countered with an expert who opined with specifics as to why he believed the Medical Intensive Care Unit had departed from accepted standards and why the fall was a proximate cause of the worsening of one or more issues Salgado was facing.

The experts in the suit, captioned Salgado v. North Shore University Hospital, were not named by the panel.

Mineola-based attorney Jack Angelou, who represented Salgado and his wife, said in an email that the panel's decision “demonstrates that defendants should strongly consider their possible exposure in this case,” but he declined to comment otherwise.

Daniel Ratner, a New York-based managing partner of Heidell, Pittoni, Murphy & Bach, represented the hospital and Reiser. He couldn't be reached for comment.