Partners Joseph L. DeMarzo and Stewart G. Milch recently won an important victory in the Appellate Division, First Department in a long term care facility wrongful death case. MCB represented a facility where plaintiff’s mother had been a resident. When the resident was initially admitted from a local hospital, she had a C. Difficile infection and was suffering from multiple co-morbidities, including a history of chronic heart failure, breast cancer, depression, hypertension and severe asthma. Plaintiff claimed that MCB’s client did not properly treat his mother’s C. Difficile infection or provide her with appropriate nutrition or hydration.
the trial level, MCB supported its summary judgment motion with a physician’s affirmation which unequivocally attested to the appropriateness of the treatment provided. After receiving plaintiff’s opposing expert’s affirmation, MCB pointed out that plaintiff’s expert’s opinions were based on evidence either not contained in the patient’s medical records or assumed facts entirely at odds with the medical records.
In affirming the trial court’s order awarding our client summary judgment, the Appellate Division’s decision demonstrates that even where a plaintiff submits an expert’s affirmation in opposition to a summary judgment motion, the motion should still be granted if it is shown that plaintiff’s expert’s opinions lack an appropriate foundation, or are speculative or conclusory. In this case, the Appellate Division specifically found that our expert’s opinions were virtually uncontested by plaintiff’s expert, including plaintiff’s expert’s failure to offer an opinion regarding the cause of the resident’s death at another facility. The same was true regarding the expert’s opinions as to the lack of informed consent claim: he speculated that the resident may have been a candidate for alternative “experimental” treatments without demonstrating why such treatment should have been offered.