SJ and Med Mal

Stukas v Streiter, 2011 NY Slip Op 01832 (App. DIv., 2nd 2011)

Thus, "candor requires the admission that our past decisions have lacked a precise consistency" (Miller v Miller, 22 NY2d 12, 15). Accordingly, we now clarify that our decisions reflecting the rule stated in Alvarez constitute the more accurate articulation of the applicable standard. To reiterate, 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 (see Alvarez v Prospect Hosp., 68 NY2d at 324). 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.

It's a long decision and this is a small part of it.  Those who are into the Med. Mal. thing should read it in full.

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