You sued your doctor for medical malpractice.
You believe he was careless.
You claim his carelessness caused you harm and injury.
Your doctor refuses to accept responsibility for what happened to you.
He refuses to admit he did anything wrong.
Now, you need additional surgery to fix the problem.
You're out of work for the past 6 months.
He hasn't even called you to check in on you.
You seek an attorney to see if you have a valid case.
He gets your records and has a medical expert review them.
The medical expert confirms that your doctor violated the basic standards of good medical care.
The expert also confirms that your doctors' negligence caused you permanent injury.
You sue your doctor.
He denies all of your allegations.
He says he did nothing wrong.
Then, she says that if he did something wrong, so did you Mr. Patient.
Then, he claims that if he did something wrong, whatever he did, did not cause you harm.
Then, to stir the pot even more, he claims that if he did something wrong and caused you injury, your injuries aren't really that bad.
Those are the typical defenses we see in these medical malpractice cases here in New York.
You say "Fine, I'll see you at trial!"
Your case takes two years to go through the entire pre-trial litigation process.
All documents have now been exchanged.
You've been questioned by the attorney for the doctor in a process called a deposition.
Lawyer's also call it an examination before trial.
I've had a chance to question your doctor as well.
It's time we notify the court that your case is technically ready for trial.
We do that by filing a document called a Note of Issue.
It simply alerts the court to the fact that all discovery is now complete and we need to be placed on the trial calendar.
Once on the trial calendar, we will sit and wait for many months until your case gets called for a pre-trial conference.
However, you should know that before you ever get to trial, the defense will do everything possible to try and get your case thrown out. When you learn this, you're furious. You're upset. You're angry.
You thought that once discovery was over and your case goes on the trial calendar, it's simply smooth sailing to get to trial. Ah, no. That would be incorrect.
The defense is going to put up one final obstacle before you ever get to trial.
They're going to ask the judge to throw your case out, claiming that you don't have a valid case.
The defense is going to claim that there are no questions of fact for the jury to answer.
Instead, they're going to argue that there are only questions of law for the judge to resolve.
As a final last-ditch effort, the defense will claim that medically, your case is unsound and anyway, there's no factual dispute that requires the jury to resolve.
They do this by making a formal written request to the judge.
This is known as a motion for summary judgment.
When they make this request, it's as if we're going to trial. The only real difference is that this trial is happening on paper only. There are no witnesses testifying in court. That means that whatever evidence has been obtained in the years leading up to this, has to be given to the judge to evaluate.
Legally, it means the defense has to present evidence, in admissible form, as if it's being presented at trial to the judge in front of a jury. They have to submit deposition transcripts, medical records and expert witness reports confirming their position. In response, I have an opportunity to oppose their request.
I get to offer the court our version of the events and provide proof to support the fact that you have a valid case. I also have to present proof as if we're at trial. That means including deposition transcripts, photos, medical records, expert reports known as affirmations and any other evidence I believe shows we are more likely right than wrong.
Importantly, I have to show the court that there are significant material questions of fact that can only be resolved by a jury. If the judge finds in our favor, your case will proceed to trial. If the court believes the defense's argument, then your case will be dismissed.
In this scenario, the defense has made their request to dismiss your case.
I have opposed it.
After many months, the judge has ruled in our favor.
The judge disagreed with the defense and felt that there were material questions of fact that required a jury to resolve.
When you hear this, you're thrilled!
You think you won your case.
You think there's little left to do.
That thinking would be incorrect.
Although you won the motion, you have not won your case...yet.
What you've won is the right to proceed to trial.
You've won the last obstacle to getting to trial...or so you thought.
You've defeated the doctor and his attorney and convinced the judge that your case needs to be resolved by jury verdict.
You think from here on out that it's smooth sailing to trial.
Ah, no. That's not the case.
Your attorney calls you up shortly after winning the motion for summary judgment and gives you the news.
"I just want to let you know the defense has indicated they're going to appeal the decision that just came down in your favor," your lawyer tells you.
"What does that mean?" you ask.
It means the defense thinks the trial judge was wrong and made legal errors in his ruling.
It means the defense is going to try and convince a panel of appellate judges that the trial judge was wrong.
If they can do that, it's possible your case may get thrown out.
If they can't, then you're on the way to trial.
To learn more about summary judgment motions, I invite you to watch the video below...