Open Bar: The Role of Summary Judgment in Medical Malpractice Actions

A motion for summary judgment is an important tool in a medical malpractice case. It allows a defendant to ask the court to decide whether a claim or defense has enough evidence to go before a jury. Unsupported cases do not proceed to trial. Cases with real expert disagreement should be decided by a jury. Importantly, it allows a defendant to learn about the plaintiff’s expert proof before trial.

Malpractice cases are almost always determined by expert proof: What the accepted standard of care requires, whether the provider departed from that standard and whether that departure caused the alleged injury. Learning the expert proof prior to trial is a helpful tool and can help mediate a case, drive strategy and affect early resolution.

Governing Standard and Burden Shifting

Under New York procedural law¹, the party asking for summary judgment must show that there is no material factual dispute that requires a trial. In a medical malpractice case, that usually means showing either that the provider did not depart from accepted medical practice or that any departure did not cause the claimed injury. A defendant who makes that initial showing has made what courts call a prima facie showing.²

Once the defendant makes the required showing, the plaintiff must respond with competent expert proof that establishes a dispute over a material fact. Attorney argument, bald speculation or general criticism will usually not defeat the motion.³ Be warned, however, even when the plaintiff provides an expert affidavit that defense counsel finds insufficient, the court may nevertheless find a question of fact. It is important to highlight the insufficiencies of the opposition by the plaintiff and preserve arguments for possible appeal.

The defendant’s motion sets the terms of a plaintiff’s response. If the defendant shows that there was no deviation from the standard of care, then the plaintiff needs to raise a factual dispute on this point to get the motion denied. The plaintiff also does not have to address causation unless the defendant’s papers also make a prima facie showing on causation.⁴

In a seminal case on the issue, the Court of Appeals granted summary judgment to the defendant where the plaintiff did not respond with competent proof and instead relied on an unsupported attorney affidavit with a new theory of the case not previously alleged.⁵ Recent appellate cases continue to apply the same rule: Conclusory allegations are not sufficient to defeat a motion.⁶

The Role of Expert Proof

A defendant’s expert must address every claim in the case. If the expert overlooks a claim in the pleadings or bill of particulars, the motion will likely be denied in its entirety. The rules, however, do allow a court to grant partial summary judgment.⁷ In this way, the defendant can seek the dismissal of certain allegations and theories to streamline the case for trial.

Expert proof is the heart of a medical malpractice summary judgment motion. Judges and juries typically need medical experts to explain the standard of care, whether it was followed and whether any alleged mistake caused harm. A strong defense expert affirmation should address the specific allegations, explain the relevant medical standard and tie the opinion to the records.

Strategic Function of Summary Judgment

Summary judgment can shape a malpractice case well before trial. For defendants, it can eliminate unsupported theories, dismiss parties who should not remain in the case or end the case if the record shows no departure and no causal link to injury.

The motion can also affect settlement. It can clarify which claims are viable, reveal weaknesses in expert proof and change how the parties value the case. Even when summary judgment is denied, the court’s decision may define the factual disputes that will drive trial strategy. When it is granted in part, the remaining case is narrower and easier to evaluate and present in court.

Conclusion

In medical malpractice actions, summary judgment tests whether the parties have enough expert evidence to go to trial. The defendant must first show that there is no triable issue on departure, causation, or both. The plaintiff then must respond only to the issues the defendant actually established. Used properly, summary judgment removes unsupported claims while preserving cases where qualified experts present a genuine dispute for the jury.

Key Takeaways for Healthcare Provider Defendants

• Summary judgment gives a provider defendant an opportunity to end the case, or narrow it, before trial if the record and expert proof show no departure from accepted practice or no causal link to the claimed injury.
• The provider’s defense depends heavily on a careful expert affirmation that addresses the actual allegations in the case, not just the general quality of the care provided.
• If the defense expert does not address a theory raised by the plaintiff, the motion may fail even where the medical care appears defensible.
• A strong summary judgment motion can improve settlement posture by clarifying the strongest defenses and exposing weaknesses in the plaintiff’s expert proof.
• Even when the motion is denied, the decision can help define the issues for trial and focus the defense on the specific factual disputes the jury will hear.

MLMIC policyholders can reach out to our healthcare attorneys for questions about summary judgment or any other healthcare law inquiries by calling (877) 426-9555 Monday-Friday, 8 a.m.-6 p.m. or by email here.

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This document is for general purposes only and should not be construed as medical, dental or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical, dental or professional obligations, the applicable state or federal laws or other professional questions.

1. NY CPLR 3212 ↩︎
2. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986); Stukas v. Streiter, 83 A.D.3d 18 (2d Dept. 2011); Glassman v. Caremount Med., P.C., 226 A.D.3d 878 (2d Dept. 2024). ↩︎
3. See Goldman v. Pavlov-Shapiro, 138 A.D.3d 1406 (4th Dept.2016); Gallimore v. Allison, 140 A.D.3d626 (1st Dept. 2016). ↩︎
4. See Stukas v. Streiter, 83 A.D.3d 18 (2d Dept. 2011). ↩︎
5. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). ↩︎
6. See Rybek v. New York City Health & Hosps. Corp., 228 A.D.3d 968 (2d Dept. 2024); Glassman v. Caremount Med., P.C., 226 A.D.3d 878 (2d Dept. 2024). ↩︎
7. CPLR 3212(e). ↩︎