Thomas A. Moore and Matthew Gaier

Summary judgment motions by defendants have become somewhat routine in medical malpractice actions. Not infrequently, the evidence and applicable standards of care offer little or nothing to justify them. Opposing such motions can be costly and time consuming, necessitating a detailed description of the evidence and careful expert analysis. Often, the determination of whether the motion will be granted turns on the sufficiency of expert opinions contained in affidavits or affirmations submitted in opposition. When such an opinion is deemed inadequate to establish issues of fact that require denial of the motion, we frequently find the court describing it as conclusory or speculative. However, attempting to discern why an expert’s opinion is regarded as deficient can be confounding.

Recently, in Brooks v. April, ___ N.Y.3d 564___, 2018 WL 2931000, the Court of Appeals reversed a decision by a divided Appellate Division in which the majority granted summary judgment to a defendant doctor on the ground that the expert affirmation submitted in opposition was insufficient to establish issues of fact. The Court of Appeals’ memorandum decision is short and to the point, stating only that the plaintiffs’ submissions rebutted the defendants’ prima facie showing. However, a review of the expert affirmations submitted in support of, and opposition to, the motion, along with the Appellate Division majority and dissent and the result in the Court of Appeals, may help shed light on expert opinion that is sufficient to defeat summary judgment.

As gleaned from the decision of the majority in Brooks v. April, 154 A.D.3d 564 (1st Dept. 2017), the plaintiff injured her head when she fell while playing catch. Ten days later, on Nov. 2, 2010, she went to see the defendant neurologist, Dr. Robert April, complaining of headaches. He ordered a CT scan, which showed no abnormalities, and diagnosed post-concussion headache syndrome. The plaintiff returned to April for follow-up examinations on Nov. 8 and Nov. 15, during which he concluded she was continuing to suffer from post-concussion headache syndrome. On Nov.30, the plaintiff called April, complaining that her head pain had increased. He told her to rest, take pain medication and go to his office the following morning. When he saw her on Dec. 1, her headache had diminished but she was experiencing vision problems. April performed a neurologic examination, which he indicated was normal, and an electroencephalogram (EEG), which was also normal. He diagnosed her as having experienced a migraine based upon her personal and family history—she had a history of migraines as a teenager 20 years earlier, for which she underwent an MRI that was reported as normal, and her mother and aunt also had histories of migraines. He therefore administered anti-migraine medication in the office and gave her a prescription for another similar medication.

The next day, Dec. 2, the plaintiff sought a second opinion from another neurologist, who similarly formulated a working diagnosis of migraine with aura and post-concussive headache syndrome, but also ordered an MRI to evaluate secondary causes. When that study was performed five days later, the results were indicative of a brain bleed. She was then referred to a neurosurgeon, who saw her on Dec. 9 and ordered a CT scan that confirmed a brain hemorrhage. The neurosurgeon indicated that the bleed likely occurred on Nov. 30, when the new symptoms developed, and ordered another MRI, along with a magnetic resonance angiogram (MRA) and magnetic resonance venogram (MRV), and indicated that if those tests showed an arteriovenous malformation (AVM), she would need a cerebral angiogram—an invasive procedure. The magnetic resonance tests were performed on Dec.10 and did not reveal an AVM.

On May 20, 2011, the plaintiff consulted a radiologist at another institution, who reviewed the prior imaging studies and concluded that the hemorrhage likely occurred on Nov. 30, that it was unrelated to the fall and that it appeared to be spontaneous. On May 24, she had another MRI and MRA, which revealed a remote hemorrhage, after which the radiologist and a new neurologist recommended that the plaintiff have an angiogram to check for a possible AVM. A cerebral angiogram, performed on June 13, 2011, revealed a micro–AVM that had ruptured. On July 27, 2011, the plaintiff underwent surgery to remove the AVM. After the surgery, the plaintiff began having seizures, headaches, balance problems, confusion, fatigue and impaired vision.

In moving for summary judgment, April submitted a 16-page affirmation from a neurologist that set forth the pertinent facts in reasonable detail, and opined that April had not deviated from the standards of care and did not cause the plaintiff any injury. Citing guidelines by the American Academy of Neurologists, this expert opined that it was appropriate for April to send the plaintiff for a STAT CT scan on Nov. 2, and, based upon the normal results, to conclude she was having post-concussion syndrome. The expert opined that neither an MRI nor a cerebral angiogram were warranted, noting that she had a prior normal MRI for migraines (two decades earlier), and that angiography is an invasive procedure with significant risks. He reached the same conclusion regarding the visits of Nov. 8 and Nov. 15, stating that post-concussion syndrome is known to be protracted in patients with a history of migraine. The expert commented that the plaintiff had reported on Nov. 8 that she had since fallen twice, but that she was not dizzy and had no noticeable balance problems. He opined that expectant treatment, including rest and contacting April if she did not get better, was within the standard of care.

April’s expert opined that the plaintiff experienced an acute change in symptoms on Nov. 30, and that he properly assessed her and performed an EEG on Dec. 1 and appropriately diagnosed and treated her for migraines. The expert noted that the second opinion she sought on Dec. 2 concurred in the diagnosis of post-concussion syndrome and migraines. Citing the opinions of the subsequent treating doctors that there was a spontaneous rupture on Nov. 30, this expert opined that April had no reason to suspect AVM rupture prior to the acute change in symptoms on that date.

Regarding causation, April’s expert opined that the AVM was not diagnosable by noninvasive radiologic studies, including MRI and MRA, because it was an MRI-occult micro-AVM that was only visible in angiography. He further opined that any failure to order an MRI on Nov. 30, when April was informed of the change in symptoms, did not cause any injury because the bleed occurred when those symptoms began.

The expert further opined that the plaintiff’s subsequent complaints, including her seizure disorder, only began after the surgery, and that if the AVM had been diagnosed before it bled, “elective surgical resection could have resulted in similar injuries and complaints.”

In opposing the motion, the plaintiff submitted a 20-page affirmation from a neurologist whose name was redacted. After setting forth detailed facts, including some that were not addressed by Dr. April’s expert, the plaintiff’s expert opined that April departed from the standards of care in multiple respects, which resulted in a delay in diagnosis and treatment that proximately caused her permanent neurological deficits. The primary departure attributed to April was his failure to perform a differential diagnosis. The plaintiff’s expert identified 11 categories of conditions which should have comprised that list, in order. The first category was “trauma related,” which included post-concussion syndrome and intracanial bleeding. The second category was “nontrauma related,” and it included AVM, among other conditions. Migraines was the seventh category, and the expert noted that the plaintiff had not had one in over 20 years.

The expert opined that this differential diagnosis would have dictated a clinical work-up, including either MRI/MRA, CT angiography or a conventional cerebral angiogram, and that the failure to order any of those tests was a deviation from the standard of care. The expert opined that having failed to perform a differential diagnosis and obtain the indicated work-up, April departed in not making a precise diagnosis of clinical manifestation of AVM and not obtaining a neurosurgical consult. It was the expert’s opinion that April could not properly rule out AVM based on her history of a normal MRI when she was 15 years old, since that MRI did not involve vascular imaging and AVMs characteristically enlarge over time.

The plaintiff’s expert also found it significant that on Nov. 8, the plaintiff told April that she had fallen twice since he saw her six days earlier. The expert indicated that this information should have led April to consider whether the original fall during a game of catch may have been caused by an underlying medical condition, noting that recurrent falls are atypical for post-concussion syndrom and migraine.

With respect to causation, the plaintiff’s expert opined that as a result of the departures from the standards of care, the AVM “which was clinically manifest before a major bleed had occurred was allowed to pursue its natural course, resulting in major intracerebral hemorrhage with brain tissue destruction, necessitating more extensive surgical procedure and resultant permanent neurologic deficits, including a seizure disorder.” The expert opined that the departures deprived her of the opportunity to have the AVM timely treated so as to avoid the brain hemorrhage, and explained that the damage caused by the hemorrhage “made the ultimate surgical repair more complicated and delayed definitive identification of the AVM.” The expert opined that detection and surgery before the bleed would have resulted in “less brain tissue destruction and fewer, less extensive, or perhaps even no deficits.”

The Supreme Court denied the defendant’s motion. The Appellate Division reversed and granted the motion in a split decision. There was agreement that April had prima facie established his entitlement to summary judgment. The dispute, therefore, was whether the affirmation of the plaintiff’s expert established the existence of material questions of fact.

The majority found that it did not:

Plaintiffs submitted the affirmation of a neurological expert offering opinions in conclusory fashion, without evidentiary substantiation. Plaintiffs’ neurological expert opined that the accepted standard of medical care on plaintiff’s presentation of symptoms following her November 30 hemorrhage was to order a “cerebral MRI and MRA or CTA [computed tomography angiography] or conventional cerebral angiography.” The disjunctive phrasing of this statement apparently indicates that, in plaintiffs’ expert’s view, performance of either noninvasive or invasive testing would have been sufficient to meet the accepted standard of medical care. Put otherwise, the apparent view of the expert is that the performance of noninvasive tests such as an MRI and MRA would have obviated the need for a cerebral angiogram.

The record clearly establishes, however, that plaintiff’s micro–AVM was MRI–occult, and thus was never detectable by means of noninvasive testing, including the Dec. 7, 2010 MRI, the Dec. 10, 2010 multiple tests (MRI, MRA and MRV) and the May 24, 2011 MRI and MRA ordered by doctors other than defendant.

The dissent found the affirmation of plaintiff’s expert neither conclusory nor without evidentiary substantiation. It noted that there was no dispute that an angiogram would have revealed the AVM, and that the plaintiff’s expert “creates a question of fact as to whether defendants should have performed a differential diagnosis before the AVM advanced to the point where it caused permanent neurological damage.” That the expert’s opinion as to the required diagnostic test was stated “in the disjunctive” did not trouble the dissent, because “the very point of plaintiffs’ expert’s opinion is that the failure to order any sort of test other than an EEG was part of defendants’ failure to perform a differential diagnosis.”

However, the majority rejected any suggestion that angiography was warranted in November, because “plaintiffs’ expert offered no probative evidence that performance of a risky, invasive angiogram was indicated at the time in question.” Therefore, the focal point for the majority was whether the AVM could have been detected by MRI before it ruptured. In finding that there was no issue of fact in that regard, it stated, “[p]laintiffs’ expert’s conclusory opinion that noninvasive testing would have led to an earlier diagnosis failed to address the opinion of defendants’ expert (based on the noninvasive testing over the six-month period after plaintiff left defendant’s care) that the MRI–occult AVM was not diagnosable by such testing.”

The critical issue, therefore, was whether an MRI/MRA performed before the hemorrhage would have led to timely diagnosis and treatment of the AVM. A review of the parties submissions to the Court of Appeals reveals that to be the central issue. The defendant argued that this AVM was MRI occult and therefore could never have been seen on an MRI and could only be diagnosed with an invasive angiogram. It was the plaintiff’s position that while the AVM was not plainly diagnosable on MRI after the bleed, that is because it was obscured by the hemorrhage and that it would have been diagnosable on MRI/MRA before it bled. The plaintiff further pointed out that the only reason an angiogram was performed in June of 2011 was because the MRI/MRA three weeks earlier led two doctors to order the angiogram to check for a possible AVM.

That court’s conclusion, while very brief, is unanimous and revealing. It found that “[p]laintiffs’ submissions rebutted defendants’ prima facie showing of entitlement to summary judgment and raised triable issues of fact.” As previously noted, April’s expert opined that the AVM was not diagnosable by MRI/MRA, “because it was an MRI-occult micro-AVM that was only visible in angiography.” However, he did not address whether images of the AVM on the MRIs performed after the hemorrhage were obscured by the damage from the bleed, and never stated whether an MRI/MRA before it bled would have revealed the AVM. The plaintiff’s expert, as noted above, opined that the damage caused by the hemorrhage “delayed definitive identification of the AVM.” On this record, the affirmation of plaintiff’s expert was sufficient to rebut that of the defendant’s expert.

It is a fundamental tenet of summary judgment motions in medical malpractice actions that “a plaintiff, in opposition to a defendant’s prima facie showing of entitlement to judgment as a matter of law, only rebut the moving defendant’s prima facie showing,” see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986). Therefore, where an expert affirmation submitted in support of such a motion is deemed sufficient to satisfy a moving defendant’s burden, a plaintiff’s expert’s opposing affirmation need only rebut the showing made by the movant. While the affirmation of the plaintiff’s expert in Brooks could have provided a more in depth explanation of why a pre-bleed MRI would have resulted in a timely diagnosis, it was sufficient to rebut the showing made by the defendant’s expert on that issue. That is the standard required to deny summary judgment.

Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore. We thank Gerard K. Ryan Jr.,who represented the plaintiff on appeal, for providing us with copies of the expert affirmations and and the parties’ submissions to the Court of Appeals.