By Edward P. Milstein, Partner
Summary judgment motions are almost always the bailiwick of
defense firms in the area of medical malpractice litigation. We have seen
the use of this litigation tool surge in recent years. Fortunately, we at
DANKNER MILSTEIN, PC., have been able to successfully defeat this
tactic. The use of the summary judgment motion (after discovery has been
completed and the case has been placed on the court’s calendar by filing the
Note of Issue) by the defendants can provide certain benefits to the
First, the defendant’s motion papers will contain detailed affidavits
from their experts outlining the complete defense to the case and to the
claims of liability. (The liability experts’ identities will also be revealed.)
Obviously, this can be very helpful in that it will eliminate surprise and
provide substantially more information than a typical 3 101(d) expert
disclosure. Additionally, if the same expert is produced as a witness at
trial,the sworn affidavit will usually provide fodder for cross examination.
In addition, the motion compels the plaintiff’s attorney to take a hard
and careful look at the case. The success of a medical malpractice case
generally relies upon minute details which the summary judgment motion
will flesh out.
The plaintiff’s attorney must respond to the motion by seeking out the
best experts available to oppose the motion in affidavit form. The
preparation of the opposition papers provides an excellent opportunity to
get “into the weeds” and deal with issues inherent to every medical
malpractice case by identifying problematic aspects of the case.
Recently, we at DANKNERMILSTEIN, PC., have turned the tables
on the defense by making motions for summary judgment in 4 specially
selected medical malpractice cases. In 3 of these cases, the Court found for
our clients granting our application and directing a finding of liability
against the defendant healthcare provider. This is essentially the same as
a jury determining that the defendant was negligent. In the 4th case, the
Court not only found for the plaintiff on the question of liability, but also
determined that the plaintiff’s injuries were directly caused by the
defendant’s negligence. We actually won the entire case on papers alone.
In the 3 cases that the Court found for the plaintiff on liability, the
cases were pending in what ordinarily would be seen as hostile territory to
plaintiff’s in medical malpractice cases, to wit; Dutchess, Westchester and
Two of these 3 cases settled advantageously for our clients within
months of the decision.
I am annexing copies of the 4 court decisions .