Tuesday, December 19, 2006

Medical Malpractice Case Dismissal For Lack of Expert

This case in yesterday's New York Law Journal demonstrates once again the single most important aspect of any medical malpractice case: The need for an expert.

In Doe v. Torres (05 Civ 3388), a prisoner attempted to represent himself regarding an allegation of failing to properly treat an injured knee. The facts are almost irrelevant, for the plaintiff violated the cardinal rule of malpractice cases. He didn't have an expert to state that the defendant doctor had deviated from customary and usual practice. He will not make it to trial, with Magistrate Judge Gorenstein recommending a grant of summary judgment to the defendants.

In deeming such expert testimony required, the magistrate judge concluded that plaintiff's case was not a 'rare' instance in which a juror could conclude either that the defendants departed from accepted practice, or that if there was a departure, it proximately caused any injury to plaintiff. Because nothing in the medical records would allow a reasonable juror to conclude that either of the two elements of a medical malpractice claim had been proved, plaintiff failed to make a prima facie showing of medical malpractice.

Labels: Medical Malpractice

posted by Eric Turkewitz  # Permanent Link

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