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The Appellate Division, Second Department unanimously affirmed a Kings County decision granting the Hospital defendants summary judgment in an action for medical malpractice. Plaintiff brought suit alleging that Hospital staff failed to timely perform blood cultures and provide antibiotics to the patient who presented to the emergency department with renal failure and sepsis. The Hospital defendants moved for summary judgment, citing to their staff’s exemplary medical care and orders for numerous consultations and broad-spectrum antibiotics within minutes of presentation.

The motion court granted defendants’ summary judgment motion. Plaintiff appealed, contending that the records created questions of fact about the sequencing of treatment and that the antibiotic dosages were subtherapeutic. Defendants responded that the motion court correctly held there were no triable issues of fact, as their experts noted the appropriateness of the treatment ordered by Hospital staff, and that plaintiff’s contentions were speculative and unsupported by the record.

The Second Department agreed with defendants’ position, holding that “defendants demonstrated their prima facie entitlement to judgment as a matter of law through their submission of expert affirmations which established that they did not depart from accepted medical practice, and that, in any event, any alleged departure was not a proximate cause of the decedent’s injuries or death.” The Court further held that plaintiff’s theories “failed to address specific assertions made by the [] defendants’ experts, and was otherwise conclusory and unsupported by the evidence.”

Briefing was completed by Christopher Simone, with Nicholas Tam arguing before the Second Department on behalf of the Hospital defendants.

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