You think you have a good case. 

Your lawyer tells you that you have a solid case.

Your lawyer tells you that your case has been reviewed by a medical expert who feels that there were departures from good and accepted medical care that caused you permanent harm. You have met all the requirements to bring your lawsuit in the Supreme Court (the trial level court) in the State of New York.

You proceed with discovery- exchanging medical records and other papers. You appear for a deposition (a question and answer session where the defense lawyer gets to question you at length about what happened to you and what injuries you suffered because of the malpractice). The doctors who treated you are questioned by your lawyer.

Your lawyer continues to tell you that you have a good case. Except for one problem...

The defense lawyers have now asked the trial Court to dismiss your case. They've made a motion for summary judgment. There are many reasons a defense lawyer could use to ask for your case to be dismissed. The most common one is to claim that there simply is no malpractice. The defense lawyer will usually support this claim with statements from the doctors you have sued where they swear up and down that there is no evidence of wrongdoing. They may claim that whatever happened to you was out of their control, or a "known complication" that can occur with your procedure/treatment/medical care. The defense will claim that there is no "Question of fact" as the facts are not contested. They will also claim that the only issue is one of 'law' which must be decided by the Judge assigned to the case, and not one of 'fact' which would usually be decided by a jury of one's peers.

When faced with a defense lawyer's request to dismiss your case, your lawyer must now bring out all of his ammunition in order to fend off this potentially lethal assault on your claim. Your attorney will prepare a detailed statement for you to sign which explains in detail the facts of your case. It will also set forth why you believe you have a valid and meritorious case. In New York, your attorney is then required to have your expert detail the specific reasons why he or she believes there is a valid case. Your lawyer's 'affirmation in opposition' will detail all of the factual inconsistencies that exist in the medical care rendered to you.

Only by establishing that there are 'Questions of Fact' for a jury to decide, will the defense lose their request. If there are no real questions of fact that exist either by competing experts, or from the parties to the case, then your case will likely be dismissed by the Court before you ever get to trial. If this happens, you should seriously consider an appeal after evaluating the reason why your case was dismissed. In most medical malpractice cases, if both sides submit expert statements that are opposed, that will usually be sufficient to create questions of fact that will require a jury to decide.

A defense attorney must evaluate the likelihood of winning such a motion before deciding to proceed forward with such a time-intensive and research intensive event. The only favorable thing that will occur for the defense- if they proceed with a motion for summary judgment, regardless of whether they win the motion or not, is that they will learn of the plaintiff's expert witness much earlier than they normally would, and also the detailed substance of what he will testify about at trial. This tends to flush out the expert and his testimony. If your lawyer tries to oppose the 'motion to dismiss' without a statement from your medical expert, you can be sure that your case will be summarily dismissed.

Hopefully you will not encounter this request to dismiss prior to trial. Keep in mind that even if your case proceeds to trial, the defense is entitled to ask the Court at the end of your presentation of evidence, to dismiss your case before they even put on any defense witnesses. With proper proof, expert testimony that supports your claim, you will have established a 'prima facie case' which means that you will have proven all the elements necessary to have your case decided by the jury.

To learn more about summary judgment in these civil lawsuits I invite you to watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer