Litigating Merit in Malpractice Cases

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).