News: An appellate division of a state court reversed an order granting summary judgment to defendants and held that the plaintiffs’ introduction of an affidavit by a physician was sufficient to raise a triable issue of fact. The action involved an allegation of medical malpractice and lack of informed consent, brought by a mother, individually and on behalf of her son, who alleged that the infant suffered the loss of his right testicle due to the hospital’s and the physician’s delay in diagnosing and treating testicular torsion.

The appellate court’s decision analyzed the qualifications of the plaintiffs’ expert witness and concluded that he possessed the necessary expertise to opine in such a case. Furthermore, the appellate court confirmed that the opinions contained in the affidavit successfully raised an issue of fact that precluded summary judgment.

Background: In March 2011, an infant was suffering from lower right abdominal pain. Physicians ruled out appendicitis, but failed to perform a genital or urinary examination. Additionally, the hospital failed to call for a surgery or urology consult and to perform further tests, such as a testicular ultrasound. The source of the infant’s pain was not further investigated once appendicitis was ruled out. The following day, while the infant continued to suffer from pain, the physician and hospital failed to order a stat sonogram or attempt a manual detorsion of the infant’s testicle.

The infant’s mother, individually and on behalf of her son, filed a complaint alleging medical malpractice and lack of informed consent against the urologist who treated her son, the hospital, the hospital association, and two other medical practitioners. The complaint alleged that the physician’s failure to timely diagnose and treat the infant’s testicular torsion led to the patient losing his right testicle.

The complaint alleged that the urologist deviated from the accepted standard of care by failing to promptly respond to the emergency and by causing further delay in the treatment of the condition. The plaintiffs claimed that the urologist also failed to attempt a manual detorsion of the patient’s testicle. The plaintiff alleged that this delay in care resulted in the infant losing his right testicle during an emergency operation.

During trial, each of the defendants moved for summary judgment and presented expert witness testimony that argued no deviation from the standard of care occurred, and no triable issue of fact existed. The plaintiff opposed the motions for summary judgment by introducing an affidavit from a board-certified pediatrician specializing in emergency medicine, who stated that the physicians had failed in the timely diagnosis and treatment of the infant’s testicular torsion and that such delay had been the proximate and actual cause of the patient losing his right testicle.

The trial court granted the defendants’ motions and stated that the plaintiff had failed to introduce sufficient evidence to establish a triable issue of fact. Because the plaintiff’s expert was not a board-certified urologist, the expert was not qualified to testify as an expert witness in this matter. The plaintiff appealed the adverse decision, and the court of appeals reversed the trial court’s order, finding that the plaintiff’s expert was sufficiently qualified to opine on the delays and deviations. The plaintiff’s expert affidavit was sufficient to raise a triable issue of fact, and the matter was improper for summary judgment.

What this means to you: In contrast to the previous case, which was properly dismissed on summary judgment, such a motion was inappropriate here because of the expert’s substantive affidavit. This expert provided more than a simple declaration stating that the expert was retained and would eventually opine; this expert, who was appropriately qualified, offered a specific opinion on issues of the standard of care, delays in diagnosing and treatment, and deviations of the standard of care. On appeal, the court addressed these two questions: if the expert was sufficiently qualified and if the introduction of the affidavit sufficed as evidence of a triable issue of fact.

In its analysis, the court reiterated how the introduction of expert testimony on behalf of a plaintiff is crucial to the success of the case and to the plaintiff’s success in defeating motions for summary judgment. While it is well established that an expert must be qualified to opine on a specific case, the court focused on whether the proper foundation supporting the expert’s qualification had been laid by the plaintiffs. The defendants argued that the plaintiff’s expert did not practice urology but was an emergency pediatrician, and that the expert was certified in a different state. However, the appellate court disagreed and noted how the expert had presented a strong case in support of his qualification. In particular, the physician worked in pediatrics and dealt specifically with emergency situations.

The court found that this case, which involved an infant who was treated in an ED, was a situation with which the plaintiff’s expert was certainly familiar. In addition, the court explained that an expert need not be from the exact geographic location of where the case is tried; in other words, the practice of medicine in one state is sufficiently similar to the practice of medicine in another state. Thus, the court’s reasoning leads to the inference that in medical malpractice claims it is especially important to ensure not only that an expert holds the proper qualifications to present testimony, but also to clearly explain the reasons why those qualifications provide the expert with the necessary expertise to opine on a specific matter.

The court found that the expert’s affidavit adequately explained each element of the claim. Specifically, the expert analyzed the events that had led up to the infant’s emergency surgery and identified specific breaches in the standard of care. First, the delay in ordering additional testing when the infant’s pain did not subside and appendicitis had been ruled out led to a worsening of his condition. Pain is a symptom of a medical problem that requires investigation. It is the body’s way of letting us know that something needs attention. An adult might be able to understand what is wrong and how to fix it. But pain in an infant or child, usually manifested by continued crying, requires investigative diligence and persistence from care providers until the source of the pain is identified and treated. To discharge an infant from an ED because a common problem, such as appendicitis, has been eliminated can constitute negligence. Second, the urologist’s failure to attempt manual detorsion and his delay in reaching the ED also led to the emergency surgery, which caused the infant to lose his testicle. In the expert’s opinion, any one of these breaches could be the proximate cause of the infant’s injuries. With this opinion, the plaintiff met the burden and raised questions of fact, which precluded summary judgment for the defendants.

Given how critical an expert’s opinion is, it is important for care providers to analyze and dissect opinions from opposing experts, whether those opinions are written in affidavits or presented through an expert’s deposition. In these two cases, written affidavits offered vastly different substance: One merely stated an expert’s intention to opine on substance while the other offered a substantive opinion by the expert.

A physician or care provider’s motion for summary judgment is far more likely to succeed when only opposed by the former type of affidavit; a substantive affidavit by an expert physician, who testifies about his or her appropriate qualifications and the applicable disputed facts, such as the standard of care and deviations from the standard, is more difficult to overcome. However, it is important to note that in this case, even though the defendant physicians and hospitals were unsuccessful on summary judgment, the case remains active — and the defendants will have an opportunity to challenge the expert’s sufficiency during trial. Summary judgment is not always an option, and when a defendant attempts but is unsuccessful, that is not a complete defeat. Moving for summary judgment may reveal strengths or weaknesses in the plaintiff’s case and give valuable insight into where to focus subsequent efforts to defend against the malpractice action.


Decided on Aug. 21, 2019, in the Supreme Court for the State of New York, Appellate Division, Second Department, Case Number 2016-13016.