Partners Karen Corbett and Gregory Cascino obtained summary judgment in an occupational therapy case. Plaintiff was treated in our client hospital’s emergency room after sustaining 2 gunshot wounds in his right arm resulting in the loss of sensation to the 4th and 5th digits of his right hand. On discharge, he was referred to our client hospital’s outpatient clinic for occupational therapy. At his first therapy session, the OT applied a hot pack to his right hand and allowed the plaintiff to sit with hot pack on for 20minutes. The plaintiff alleges that he sustained a burn as a result of the hot pack application. He testified that he noticed a blister on the tip of his 5thfinger when the hot pack was removed which he brought to the attention of the OT. According to the plaintiff, the OT told him the blister was caused by friction from the splint and it did not require treatment, however the plaintiff was told to return to the clinic if the blister opened or worsened. A week later the blister burst and the plaintiff presented to our client hospital’s Emergency Room where he was diagnosed with a second degree burn. He later developed necrosis of the finger. He brought a malpractice action against our client's hospital and clinic in which he alleged that our client hospital’s OT negligent application of the hot pack caused the burn, which the OT and other medical providers at our client hospital failed to diagnose and treat.
The Court granted our summary judgment motion which was supported by an expert affirmation from a physician who opined that the application of the hot pack to the right hand could not have caused a burn to only one finger tip, and even if it, did there were no departures from the standard of care in diagnosing and treating the injury. The plaintiff's opposition papers, which were not supported by an expert affirmation, contended that the OT was negligent in applying the hot pack knowing that the plaintiff was insensate, and because this was ordinary negligence, not malpractice, no expert opinion was necessary to support that position. The lower court granted our motion and dismissed the action based on the finding that plaintiff could not raise a triable issue of fact without submitting an expert affidavit. On appeal, the Second Department affirmed the Court’s decision. The appellate court found that our motion made a prima facie case which plaintiff could not rebut without an expert opinion.