By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services

California Hospital Medical Center

Los Angeles

Morgan Lynch, 2018 JD Candidate

Pepperdine University School of Law

Malibu, CA

News: In mid-2010, a man presented to a Brooklyn hospital with a variety of symptoms, but was discharged. He eventually required further treatment, and he and his wife sued both the hospital and treating medical professional. After hearing motions for summary judgment from both defendants, the New York trial court granted the motions and dismissed the complaint.

In April 2017, the Appellate Division of the New York State Supreme Court affirmed the summary judgment rulings. The appellate panel reached its conclusion based on the evidence submitted by the defendants and the plaintiff’s lack of evidence.

Background: On May 27, 2010, a man was admitted to the ED of a Brooklyn, NY, medical center due to fever, chills, headache, joint pain, dizziness, and bilateral ear pain since the previous day. All the man’s vital signs were normal and stable, as was his temperature.

The physician’s assistant who treated the patient performed a thorough physical and cardiovascular examination of the patient. The test results were normal, thus ruling out various types of infections such as bacterial ear infection, exudative tonsillitis, bronchitis, and pneumonia. The physician’s assistant noted the patient’s condition as stable and improved. He was then diagnosed with viral syndrome and subsequently discharged from care with instructions to follow up with his primary care physician and to return to the ED if his symptoms worsened.

A week later, on June 3, 2010, the patient presented at a different hospital in Manhattan complaining of fever, nausea, and headache for the preceding 10 days. The patient’s temperature was 103.3 degrees, and he was admitted to the hospital, where he ultimately was diagnosed with and treated for endocarditis.

The patient and his wife subsequently sued the Brooklyn hospital and the physician’s assistant in Kings County Supreme Court (New York’s lowest-level court), alleging the defendants’ failure to diagnose and properly treat the patient amounted to medical malpractice. The defendants separately moved for summary judgment dismissing the complaint against each of them, and the court granted each motion, dismissing the complaint. The plaintiffs then appealed the decision to the appellate division of the supreme court.

Opening its opinion, the appellate panel listed the two elements of a medical malpractice claim in New York as (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was the proximate cause of injury. The court noted that the initial burden rests on the defendant to show conformity with the requisite standard of care in a summary judgment dismissing the complaint in a medical malpractice action or that the plaintiff was not injured by the lack of conformity with the applicable standard.

After reviewing the record, the panel concluded that the defendants successfully met their burden to warrant judgment as a matter of law in their favor by submitting testimonial, documentary, and expert affirmation evidence demonstrating conformity with good and accepted medical practice in rendering care to the plaintiff, and that the plaintiff’s nonspecific symptoms, his stable vital signs, and his normal physical examination rendered further diagnostic testing by the defendants unwarranted.

The court held that the plaintiffs failed to raise a triable issue of fact in opposition to the summary judgment motions. This was because their expert’s opinion that additional medical testing should have been undertaken was conclusory, speculative, and based largely on hindsight reasoning. The plaintiffs also were unsuccessful in maintaining additional contentions on appeal as they were either improperly raised for the first time on appeal or determined to be without merit. Accordingly, the appellate panel held that the trial court properly granted the defendants’ motions for summary judgment, and dismissed the complaint.

What this means to you: This case illustrates the importance of developing a firm understanding of expert witness qualification. The mistake committed by the plaintiffs in this complaint is a potential pitfall that poses threats to any party involved in litigation. Expert witness testimony is very frequently pivotal in a case: Courts and juries often deal with conflicting expert testimony and are required to weigh which expert’s testimony is more credible. A party’s reliance on conclusory expert testimony is tremendously dangerous. As such, it may be wise for litigants to submit questionable expert witness reports to a removed attorney for evaluation. This provides a second set of eyes from a neutral source and can reduce cost up front because a report based on conclusory reasoning at the summary judgment phase easily creates judgments as a matter of law, with the only recourse an expensive and time-consuming appeal. Failure to recognize the inadmissibility of evidence can quickly cost an attorney the case for the client.

This case also shows the merits of re-examining the value of a case before proceeding to an appeal. Rather than investing precious time and resources into filing an appeal, the parties may again confer and mediate to reach a settlement. A party seeking appeal typically faces a difficult burden under the judicial appellate system in the United States; a low percentage of judgments are overturned, and thus settlement should be considered as a possible outcome to mitigate the risks faced pursuing a questionable appeal.

Along a similar vein, at the outset of an appeal, it is frequently a wise decision to change counsel from trial to appeal. While it is true a trial team who has worked with a certain case for several years already knows the facts of the case, the team’s ability to marshal the facts as they stand may very well have already been exhausted at the trial level. A fresh set of eyes may be worth the cost. It also is likely that the trial team became emotionally invested in the case and their arguments over the life of the case at the trial level, or that the team will struggle to view the case in a sterile appellate lens. Furthermore, attorneys dedicated to appellate practice may have stronger mastery over appellate standards and processes, and are in a better position to navigate an appeal.

Turning to the underlying medical facts in this case, the physician’s assistant here made an important decision in requesting that the patient follow up with his primary care physician if his symptoms did not improve. This was wise for two reasons. First, the future care is shifted to a different physician, and provides a second pair of eyes on the medical diagnosis. The second reason requesting the patient follow up is a good policy is that the burden shifts to the patient to affirmatively seek care if anything becomes problematic. Suggesting a patient follow up will, of course, not overcome a severe deviation from the applicable standard of care, but it is certainly a factor that shows responsibility and care for patients. This may weigh well in the healthcare provider’s favor in jury trials.

This case demonstrates the tremendous value in using smart procedural tactics during litigation. Motions for summary judgment require a significant amount of time and resources to effectively prepare. However, when executed well, such motions can win a case and prevent the risks inherent in any litigation or trial as well as the considerable expense. The investment often is worthwhile and serves to save parties money in the long term.

Finally, in this case the defendants were represented by two different firms, and the two plaintiffs were represented by one attorney. Putting pressure on an attorney in litigation can result in mistakes on their behalf or on more favorable settlements, especially when deadlines for responses and appearances approach. Taking advantage of what are usually the defense’s superior resources by pursuing available motions can pay important dividends in this regard.


Decided on April 26, 2017, in the New York Supreme Court, Appellate Division, Second Department, Case No. 2015-01557.