New York Medical Malpractice Lawyer Blog
In Powell v. Oudkerk, 2025 NY Slip Op 02233, the Appellate Division, Second Department, addressed a medical malpractice and wrongful death case involving the death of a woman following her discharge from Brookdale Hospital Medical Center.
Background Facts
On September 4, 2017, the plaintiff’s decedent was struck by a vehicle while standing on a sidewalk. She was taken to Brookdale Hospital Medical Center, where she received treatment, including from Dr. Akeem Atanda. On September 5, 2017, Dr. Atanda discharged her. On the night of September 7, 2017, the decedent went into cardiac arrest and was transported again to Brookdale, where she died. An autopsy determined the cause of death was deep vein thrombosis (DVT) with pulmonary embolism, following blunt trauma.
In 2019, the plaintiff, individually and as administrator of the decedent’s estate, brought claims against the hospital, Dr. Atanda, and another party. The complaint alleged medical malpractice, wrongful death, and negligent hiring and retention.
Question Before the Court
The main question was whether the trial court properly denied the defendants’ motion for summary judgment on the claims of medical malpractice and wrongful death. A secondary question was whether the court erred in denying summary judgment on the negligent hiring and retention claim.
Court’s Decision
The Appellate Division upheld the trial court’s decision to deny summary judgment on the malpractice and wrongful death claims but reversed the denial of summary judgment on the negligent hiring and retention claim. The court modified the order by dismissing the negligent hiring and retention claim, while allowing the malpractice and wrongful death claims to proceed.
Discussion
The court began by outlining the standard for summary judgment in medical malpractice actions. A defendant must show either that there was no deviation from accepted medical standards or that any alleged deviation did not cause the plaintiff’s injuries. If the defendant meets this initial burden, the plaintiff must then raise a factual dispute by presenting expert opinion evidence.
The defendants in this case submitted the decedent’s medical records, the autopsy report, deposition transcripts, and an expert affirmation. Their expert, board-certified in surgery and critical care, stated that Brookdale’s staff performed appropriate testing and treatment and had no reason to suspect DVT.
The court held that this evidence was sufficient to show the defendants did not deviate from the applicable standard of care. However, the court concluded that the defendants failed to establish that any alleged deviation did not cause the decedent’s death. This failure meant the defendants had not fully satisfied their burden for summary judgment on the malpractice and wrongful death claims.
In response, the plaintiff submitted an affirmation from a medical expert in internal and pulmonary medicine. The plaintiff’s expert stated that the decedent’s symptoms and history suggested a high risk of DVT. According to the expert, the defendants failed to consider DVT in their differential diagnosis and did not order testing that could have confirmed or ruled out that condition. The court found this expert opinion sufficient to raise a factual issue, precluding summary judgment.
The court explained that when parties offer conflicting medical opinions, summary judgment is generally not appropriate. It reiterated that the same analysis applies to the wrongful death claim, since it was based on the same alleged malpractice.
Conclusion
The Appellate Division’s decision clarified that a claim of medical malpractice can survive summary judgment where the parties offer competing expert opinions. The court emphasized that the burden is initially on the defendant to show both adherence to the standard of care and lack of causation. If that burden is met, the plaintiff can defeat summary judgment by presenting an expert who challenges either element.
Anyone who has suffered an injury or lost a loved one due to possible medical malpractice should consult with an experienced New York personal injury lawyer. These cases require detailed legal analysis and expert testimony, and having skilled legal counsel can make a difference in securing compensation.