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Legal Update: Change in Burden of Proof

The KSLN Medical and Professional Liability practice wants to make our clients aware of an appellate case decided one week ago that substantially changes the burden of proof for summary judgment motions under New York law.   On November 15, 2019, the Appellate Division, Fourth Judicial Department, decided Bubar v. Brodman.  Prior to Bubar, when a malpractice defendant moved for summary judgment based on expert proof establishing either  that the standard of care was met or that the departure alleged did not cause the claimed injuries, the burden then shifted to plaintiff to establish, through competent expert evidence, questions of fact as to both a departure from the standard of care and that said departure was a competent producing cause of the injury.  O’Shea v. Buffalo Med. Group, P.C., 64 AD3d 1140 (4th Dept. 2009).   In other words, defendant only had to sufficiently address one element of plaintiff’s malpractice claim was missing, and plaintiff had to address both elements to defeat summary judgment.  There was a Department split on this issue, with the Second Department only requiring a plaintiff to address the element(s) on which defendant met its initial burden. Bhim v. Dourmashkin, 123 AD3d 862 (2d Dept. 2014). The split between the Fourth and Second Departments left this an open issue in the First and Third Departments.  Strategically, in addition to the chance of successfully obtaining dismissal, this rule allowed defense counsel to use a summary judgment motion to expose only part of their defense expert’s opinions, while forcing the plaintiff to expose their expert’s opinions on the entire case in order to defeat the motion and preserve its claim.


In Bubar, the Appellate Division overturned O’Shea, reasoning that “the burden that O’Shea places on a plaintiff opposing a summary judgment motion with respect to a medical malpractice claim is inconsistent with the law applicable to summary judgment motions in general.”  The Court went on to state that when a defendant moves for summary judgment dismissing a medical malpractice claim and meets their initial burden, the burden shifts to plaintiff to submit expert proof only as to the element on which the defendant met its burden – consistent with the Second Department.  Now, every appellate court in New York that has addressed this issue has concluded that the plaintiff’s burden is only to submit expert proof raising questions of fact as to the element on which the defendant met its initial burden.  While these cases are all in a medical malpractice context, we expect the same rule will be applied in other types of professional liability actions.


If you have any questions about how this change in the law might affect your exposure as a defendant or insurer of a defendant in a medical or professional malpractice action, please feel free to contact Kara Addelman or Jesse Baldwin, co-chairs of the Medical and Professional Liability practice group at KSLN



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