Verdicts

At Summary Judgment Phase, Plaintiff Must Counter Only Stated Defenses

A New York appellate court, in a decision clarifying an area of the law that had become confused by some of its previous holdings, ruled that a medical malpractice plaintiff need address the issue of causation only if the defendant uses it to support a motion for summary judgment. Stukas v. Streiter, — N.Y.S.2d —-, 2011 WL 833959, 2011 N.Y. Slip Op. 01832, N.Y.A.D. 2 Dept., March 08, 2011.

The plaintiff sued his wife's radiologist and the hospital the doctor was affiliated with for failing to detect cancer in a CT scan performed on the patient in 2000. She was diagnosed with cancer 18 months later, and died in 2004. The defendants moved for summary judgment, based on evidence that the radiologist did not depart from the standard of care. The court determined that the plaintiff had raised a triable issue of fact concerning adherence to the standard of care, but granted the motion for summary judgment because the he had failed to adequately allege causation. The defendants did not raise the issue of causation in their motions.

On appeal to New York's Appellate Division, Second Department, Justice John M. Leventhal, writing for the panel, noted that because “candor requires the admission that our past decisions have lacked a precise consistency,” the court needed to clarify that several of its prior decisions had used language “indicating or implying” the wrong rule on this issue. Justice Leventhal traced the confusion back to the Second Department's 1986 ruling in Amsler v. Verrili, 119 AD2d 786, which held that a plaintiff must provide an “affidavit of merit” with respect to both the standard of care and the causation prongs of a medical malpractice cause of action. Some medical malpractice claims since then have been held to that standard, while others had not. Next, the court analyzed the four New York high court decisions relied upon in Amsler and concluded that they contained no authority for requiring plaintiffs to raise a triable issue of fact for both elements of a malpractice action when the defense has relied on only one prong in support of its motion for summary judgment. Finding that the confusion caused by Amsler left the Second Appellate Department out of step with the law in New York, the panel in Stukas concluded that, “in a medical malpractice action, a plaintiff opposing a defendant physician's motion for summary judgment must only submit evidentiary facts or materials to rebut the defendant's prima facie showing ' . This means that if the defendant demonstrates only that he or she did not depart from good and accepted medical practice, the plaintiff need only raise a triable issue of fact as to whether such a departure occurred. The plaintiff is required to raise a triable issue of fact as to causation only in the event that the defendant makes an independent prima facie showing that any claimed departure was not a proximate cause of the plaintiff's injuries.”

With No Consensus on Reason Why, Plaintiff Gets Second Chance

The Texas Supreme Court has found that a trial court should have given a plaintiff extra time to cure the deficiencies in the expert report she submitted in support of a medical malpractice claim, though they could not agree as to whether the trial court had or had not abused its discretion in not granting the extension. Samlowski v. Wooten, — S.W.3d —-, 2011 WL 711091 (Tex., 2/25/11).

The plaintiff brought a medical malpractice action against her doctor for misdiagnosis of her abdominal obstruction. The trial court, finding that the plaintiff's expert report was deficient, dismissed the action for failure to comply with the state's expert report requirement. The patient appealed, asserting that she should have been given addiitonal time to correct any deficiencies in her report. The Waco Court of Appeals reversed and remanded, rendering a split decision, with the majority holding that the trial court abused its discretion by failing to grant an extension to the plaintiff where she had made a good faith effort to comply with the statute and could easily cure the deficiencies noted. The defendant petitioned the state high court for review.

In Texas, a plaintiff is given 120 days after the filing of a medical malpractice case in which to submit an expert report in support of the cause of action. Texas Civil Practice and Remedies Code ' 74.351 Courts are further permitted to use their discretion in granting one 30-day extension for submission of the report.

The justices on the Texas Supreme Court, like the intermediate appellate court's members, concluded that the plaintiff should be given a chance to remedy the deficiencies in her expert report, though they could not agree on why. Three members, like the majority below, felt that the trial court abused its discretion when it did not give the plaintiff extra time even though she had made a good faith effort to comply with the statute and could easily cure the deficiencies in her report. Three others opined that, in general, a plaintiff whose expert report is found deficient should be prepared to immediately submit a supplemental report. In that way, even if the court refuses to grant a 30-day extension, she will be able to prove that her report would have been sufficient if she'd been given the additional time, thereby establishing an abuse of discretion. This second group of justices were not convinced that the trial judge had abused his discretion, as there was no proof that the plaintiff could have cured the problems in her expert report. Nevertheless, in the interest of fairness, they held that the plaintiff should be given the time extension.

The remaining three judges would have reversed the decision of the Waco Court of Appeals, leaving the plaintiff's case out in the cold.

At Summary Judgment Phase, Plaintiff Must Counter Only Stated Defenses

A New York appellate court, in a decision clarifying an area of the law that had become confused by some of its previous holdings, ruled that a medical malpractice plaintiff need address the issue of causation only if the defendant uses it to support a motion for summary judgment. Stukas v. Streiter, — N.Y.S.2d —-, 2011 WL 833959, 2011 N.Y. Slip Op. 01832, N.Y.A.D. 2 Dept., March 08, 2011.

The plaintiff sued his wife's radiologist and the hospital the doctor was affiliated with for failing to detect cancer in a CT scan performed on the patient in 2000. She was diagnosed with cancer 18 months later, and died in 2004. The defendants moved for summary judgment, based on evidence that the radiologist did not depart from the standard of care. The court determined that the plaintiff had raised a triable issue of fact concerning adherence to the standard of care, but granted the motion for summary judgment because the he had failed to adequately allege causation. The defendants did not raise the issue of causation in their motions.

On appeal to New York's Appellate Division, Second Department, Justice John M. Leventhal, writing for the panel, noted that because “candor requires the admission that our past decisions have lacked a precise consistency,” the court needed to clarify that several of its prior decisions had used language “indicating or implying” the wrong rule on this issue. Justice Leventhal traced the confusion back to the Second Department's 1986 ruling in Amsler v. Verrili , 119 AD2d 786, which held that a plaintiff must provide an “affidavit of merit” with respect to both the standard of care and the causation prongs of a medical malpractice cause of action. Some medical malpractice claims since then have been held to that standard, while others had not. Next, the court analyzed the four New York high court decisions relied upon in Amsler and concluded that they contained no authority for requiring plaintiffs to raise a triable issue of fact for both elements of a malpractice action when the defense has relied on only one prong in support of its motion for summary judgment. Finding that the confusion caused by Amsler left the Second Appellate Department out of step with the law in New York, the panel in Stukas concluded that, “in a medical malpractice action, a plaintiff opposing a defendant physician's motion for summary judgment must only submit evidentiary facts or materials to rebut the defendant's prima facie showing ' . This means that if the defendant demonstrates only that he or she did not depart from good and accepted medical practice, the plaintiff need only raise a triable issue of fact as to whether such a departure occurred. The plaintiff is required to raise a triable issue of fact as to causation only in the event that the defendant makes an independent prima facie showing that any claimed departure was not a proximate cause of the plaintiff's injuries.”

With No Consensus on Reason Why, Plaintiff Gets Second Chance

The Texas Supreme Court has found that a trial court should have given a plaintiff extra time to cure the deficiencies in the expert report she submitted in support of a medical malpractice claim, though they could not agree as to whether the trial court had or had not abused its discretion in not granting the extension. Samlowski v. Wooten, — S.W.3d —-, 2011 WL 711091 (Tex., 2/25/11).

The plaintiff brought a medical malpractice action against her doctor for misdiagnosis of her abdominal obstruction. The trial court, finding that the plaintiff's expert report was deficient, dismissed the action for failure to comply with the state's expert report requirement. The patient appealed, asserting that she should have been given addiitonal time to correct any deficiencies in her report. The Waco Court of Appeals reversed and remanded, rendering a split decision, with the majority holding that the trial court abused its discretion by failing to grant an extension to the plaintiff where she had made a good faith effort to comply with the statute and could easily cure the deficiencies noted. The defendant petitioned the state high court for review.

In Texas, a plaintiff is given 120 days after the filing of a medical malpractice case in which to submit an expert report in support of the cause of action. Texas Civil Practice and Remedies Code ' 74.351 Courts are further permitted to use their discretion in granting one 30-day extension for submission of the report.

The justices on the Texas Supreme Court, like the intermediate appellate court's members, concluded that the plaintiff should be given a chance to remedy the deficiencies in her expert report, though they could not agree on why. Three members, like the majority below, felt that the trial court abused its discretion when it did not give the plaintiff extra time even though she had made a good faith effort to comply with the statute and could easily cure the deficiencies in her report. Three others opined that, in general, a plaintiff whose expert report is found deficient should be prepared to immediately submit a supplemental report. In that way, even if the court refuses to grant a 30-day extension, she will be able to prove that her report would have been sufficient if she'd been given the additional time, thereby establishing an abuse of discretion. This second group of justices were not convinced that the trial judge had abused his discretion, as there was no proof that the plaintiff could have cured the problems in her expert report. Nevertheless, in the interest of fairness, they held that the plaintiff should be given the time extension.

The remaining three judges would have reversed the decision of the Waco Court of Appeals, leaving the plaintiff's case out in the cold.