Myrna Rouse v. Abdurhman Ahmed, M.D., et al.
Attorneys and Parties
Brief Summary
Medical malpractice and wrongful death involving pressure ulcer prevention standards and the burden on defendants to make a prima facie showing on summary judgment (SJ); abandonment of a lack of informed consent claim.
The Supreme Court, Bronx County denied defendants' motion for summary judgment dismissing the complaint.
The Appellate Division modified to dismiss the lack of informed consent claim as abandoned; it otherwise affirmed the denial of summary judgment on malpractice and wrongful death.
Defendants' expert affirmation was conclusory and failed to address key allegations (including multiple pressure ulcers and causation) and could not be rehabilitated by reply papers; the informed consent claim was unopposed below and not defended on appeal, constituting abandonment.
Background
Plaintiff, on behalf of decedent Marie, alleges medical malpractice and wrongful death, claiming defendants failed to turn and position Marie every two hours, causing multiple pressure ulcers and hastening her death. Defendants argued Marie developed only one unavoidable sacral pressure ulcer due to severe comorbidities and that her death was solely attributable to those comorbidities.
Lower Court Decision
The motion court denied defendants' summary judgment motion, finding defendants failed to establish a prima facie entitlement to judgment as a matter of law because their expert's opinions were conclusory or unsupported by competent evidence, warranting denial regardless of plaintiff's opposition (citing Winegrad v New York Univ. Med. Ctr.).
Appellate Division Reversal
The Appellate Division modified only to dismiss the lack of informed consent claim as abandoned, because plaintiff did not oppose that branch of the motion or defend it on appeal. It otherwise affirmed the denial of summary judgment, holding defendants' expert failed to explain the reasoning that the ulcer(s) were unavoidable, did not address plaintiff's claim that additional injuries were pressure ulcers, did not explain why alleged failures to turn and position could not have contributed to injury or death, relied on general chart notations that did not establish two-hour turning, and improperly attempted to cure deficiencies in reply (which cannot supply a prima facie showing).
Legal Significance
Reaffirms that in medical malpractice cases, a defendant's expert affidavit must be detailed, non-conclusory, and address the specific allegations and causation to satisfy the prima facie burden on summary judgment. Generalized chart references and unexplained conclusions are insufficient, and deficiencies cannot be remedied in reply papers. Also underscores that unopposed claims—such as lack of informed consent—may be deemed abandoned on motion and appeal.
Defendants seeking summary judgment in med-mal actions must submit a robust, reasoned expert opinion that directly confronts all alleged departures and causation; otherwise, the motion fails regardless of opposition, while unopposed claims risk dismissal as abandoned.