The Court of Appeals reversed summary judgment to defendant physician vis-à-vis causation, on the ground that defendant’s expert’s affidavit failed to meet defendant’s initial burden on his motion.

Parsing plaintiff’s bill of particulars, a majority of the Court of Appeals (Judges DiFiore, Pigott, Garcia, and Fahey) reversed the First Department’s grant of summary judgment to medmal-defendant physician on proximate causation, on the ground that defendant failed to meet his initial burden on his motion.  The Court of Appeals expressly left open, however, the appropriate standard that governs the opposing party’s burden once the burden shifts to the opposition party in a medmal motion for summary judgment.

Defendant moved for summary judgement on the issue of proximate cause and submitted in support the affidavit of his medical expert which characterized plaintiff’s allegations of malpractice as “center[ed] around an alleged contraindicated prescription by [defendant] to plaintiff of Lipitor separately and/or in conjunction with Azithromycin”.  The majority ruled that plaintiff’s bill of particulars asserted that the negligent CONCURRENT administration of two drugs (Lipitor and azithromycin) proximately caused plaintiff’s injuries, not just that the administration of one drug (Lipitor) exacerbated plaintiff’s adverse reaction to the other (azithromycin).

According to the majority opinion, defendant’s expert did not address the effect of azithromycin administered alone or in conjunction with Lipitor, and addressed azithromycin only in conclusory statements unsupported by any reference to medical research.

In opposition, plaintiff and his experts asserted that defendant’s expert did not adequately address the concurrent azithromycin prescription and did not cite to any medical research in support of his conclusions about the combined effect. Accordingly, plaintiff argued, defendant failed as a matter of law to eliminate all triable issues of fact regarding whether the combined effect of the drugs could have proximately caused plaintiff’s injury (a heart block).

The Court of Appeals sided with plaintiff and held that defendant’s expert proffered only conclusory assertions unsupported by any medical research that defendant’s actions in prescribing both drugs concurrently did not proximately cause plaintiff’s injury and did not adequately address plaintiff’s allegations that the concurrent Lipitor and azithromycin prescriptions caused plaintiff’s injuries. By ignoring the possible effect of the azithromycin prescription, defendant’s expert failed to demonstrate the absence of any material issues of fact as to proximate causation, so defendant was not entitled to summary judgment. And because defendant failed to meet his prima facie burden, it was unnecessary to review the sufficiency of the plaintiff’s opposition papers.

Judge Fahey concurred in the majority decision but wrote separately to emphasize that the Court took no position on the split of authority between the First and Second Departments on plaintiff’s burden of coming forward with evidence once defendant makes his prima facie showing on a motion for summary judgment.

In dissent, Judge Stein, joined by Judge Rivera and Judge Abdus-Salaam, would have affirmed summary judgment to defendant because a fair reading of plaintiff’s bill of particulars showed that plaintiff’s claim centered on plaintiff’s adverse reaction to Lipitor that was exacerbated by prescribing the concurrent administration of Azithromycin.  Because defendant met his initial burden on his motion, the burden should have shifted to plaintiff who failed (in the dissent’s view) to raise a question of fact because of an insurmountable gap between the data relied on by plaintiff’s experts and their conclusion that Lipitor either alone or in conjunction with the other drug caused plaintiff’s injuries. Pullman v. Silverman, 2016 NY Slip Opn 07107 (Nov. 1 2016http://www.nycourts.gov/reporter/3dseries/2016/2016_07107.htm

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