Thomas A. Moore and Matthew Gaier
Thomas A. Moore and Matthew Gaier ()

There was a proliferation of Court of Appeals decisions in medical malpractice cases over the past year. Our columns of February, August, October and December 2016 each addressed issues in malpractice actions that had recently been decided by the state’s highest court. This month’s column discusses the most recent of them.

Procedural History

In Pullman v. Silverman, 28 N.Y.3d 1060 (2016), the court returned to the standards for summary judgment in medical malpractice. The plaintiff alleged that the defendant was negligent in administering him Lipitor and in giving Lipitor in conjunction with the antibiotic Azithromycin. He further alleged that this negligent treatment caused a cardiac arrhythmia that progressed to third degree atrioventricular heart block, which required placement of a permanent pacemaker.

The defendant moved for summary judgement seeking dismissal of the complaint on the ground that there was no proximate cause, relying on an expert affidavit averring that there was no medical basis for finding a causal connection between those drugs and the plaintiff’s cardiac injury. The plaintiff responded with expert affidavits asserting that the defense expert’s affidavit failed to sufficiently address the concurrent administration of the two drugs or cite any medical research to support his opinions about the combined effect of the drugs in causing the plaintiff’s cardiac condition. Therefore, the plaintiff argued, the defendant failed to eliminate all triable issues of fact concerning causation.

The Supreme Court granted the motion and the Appellate Division, First Department, unanimously affirmed, finding that the opinion of the plaintiff’s expert on causation was inadmissible under Frye v. United States, 293 F. 1013 ( D.C. Cir. 1923). In affirming summary judgment, the First Department stated:

The court properly found that plaintiff failed to submit evidence sufficient to raise a triable issue of fact that his experts’ opinions were generally accepted in the medical community. Although plaintiff submitted numerous articles in medical literature concerning adverse reactions to Lipitor and Azithromycin, none of the articles linked atrioventricular (AV) heart block to the drugs prescribed by defendant. Biological plausibility and convergence in time between the administration of the drugs and the AV heart block diagnosis are insufficient, where no scientific evidence of causation was provided.

Pullman v. Silverman, 125 A.D.3d 562 (1st Dept. 2015).


The First Department granted leave, and a divided Court of Appeals reversed. The four-judge majority found that summary judgment should have been denied because the defendant failed to establish his prima facie entitlement to that relief. In reaching that conclusion, the majority focused extensively on the allegations in the plaintiff’s bill of particulars. As stated by the majority:

Specifically, in his bill of particulars, plaintiff alleged in part that Dr. Silverman committed medical malpractice: “in negligently prescribing Lipitor;” “in negligently prescribing Azithromycin;” and “in negligently failing to consider the possible adverse drug interactions in a patient on both Lipitor and Azithromycin[.]” Accordingly, as set forth in that bill of particulars, plaintiff alleged his AV heart block resulted from the negligent administration of the combination of Lipitor and Azithromycin, and that taking both drugs concurrently proximately caused plaintiff’s injuries.

The majority further commented that these allegations preclude the dissent’s suggestion that the plaintiff claimed “exclusively” that the Azithromycin exacerbated his adverse reaction to Lipitor.

The majority’s point in emphasizing the plaintiff’s allegations was that “the combination of both drugs established one basis for the claimed negligence.” This was significant because in finding that the defendant failed to satisfy his burden in seeking summary judgment, the majority observed that the defendant’s expert “failed to address the effect of Azithromycin administration alone or in conjunction with Lipitor,” and “addressed Azithromycin only in conclusory statements unsupported by any reference to medical research.” After reciting the import of the movant’s burden as described decades ago in its seminal decisions in Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986) and Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985), the majority concluded:

Here, defendant’s expert proffered only conclusory assertions unsupported by any medical research that defendant’s actions in prescribing both drugs concurrently did not proximately cause plaintiff’s AV heart block. These conclusory statements did not adequately address plaintiff’s allegations that the concurrent Lipitor and Azithromycin prescriptions caused plaintiff’s injuries. By ignoring the possible effect of the Azithromycin prescription, defendant’s expert failed to “tender [ ] sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez, 68 NY2d at 324) as to proximate causation and, as a result, defendant was not entitled to summary judgment. Because defendant failed to meet his prima facie burden, it is unnecessary to review the sufficiency of the plaintiff’s opposition papers (Winegrad, 64 NY2d at 853).


Three judges dissented and would have affirmed summary judgment. They found the moving papers sufficient to shift the burden to the plaintiff, stating:

The affidavit of defendant’s expert explains that no epidemiological studies even link Lipitor or other statins to plaintiff’s injury and that an isolated case report—which, as the expert noted, cannot demonstrate causation … —showing that Lipitor, in combination with drugs other than Azithromycin, caused a type of myopathy was not relevant because plaintiff’s medical records revealed that he did not have myopathy. The expert affidavit sufficiently demonstrated, for purposes of making a prima facie case, that plaintiff had no pertinent adverse reaction to Lipitor that could have been exacerbated by the prescription of Azithromycin, which was the basis of plaintiff’s claim that the combination of drugs injured him. Contrary to the majority’s conclusion, the expert was not required to further “address the effect of [A]zithromycin administration alone or in conjunction with Lipitor” (maj at 3), which is the converse of plaintiff’s claim, as opposed to his actual claim.

The dissent further found that once the burden shifted, there was “too great of an analytical gap between the data relied upon by plaintiff’s experts and their conclusion that Lipitor, alone or in conjunction with Azithromycin, caused plaintiff’s injuries … .”

This dispute between the majority and dissent appears to derive from their differing interpretations of the plaintiff’s allegations. The majority saw the administration of the two drugs in combination as comprising an independent ground of negligence and causation that had to be specifically refuted for the defendant to sustain his burden. The dissent viewed the allegations as focusing on Lipitor and that Azithromycin was merely an ancillary factor, such that the movant had only to refute the causal connection between the injury and Lipitor to shift the burden.


In terms of the standards for summary judgment in medical malpractice actions, Pullman has significant implications. First, it represents emphatic confirmation of the necessity for an expert affidavit to adequately refute the specific allegations in the bills of particulars to be sufficient to establish a moving defendant’s entitlement to summary judgment. The Court of Appeals had not previously directly addressed the import of the allegations in the bills of particulars. Second, it demonstrates that where an expert affidavit submitted in support of summary judgment challenges a plaintiff’s allegations as contrary to accepted medical or scientific principals, that expert bears the burden of providing sufficient support for that assertion. It is not enough to merely state that the causal connection between the alleged negligence and the injury is not generally accepted in order to impose upon the plaintiff the burden to establish that it is.

Judge Fahey’s Concurrence

There was also a concurring opinion by Judge Eugene Fahey in Pullman that focused on another important issue involving summary judgment in medical malpractice actions: whether a plaintiff opposing summary judgment must establish both negligence and causation in order to defeat a defendant’s motion where the defendant only demonstrated the absence of negligence and did not sufficiently establish the absence of issues of fact concerning causation. We have previously addressed that issue twice in this column.1

The first of those columns, June 2011, discussed Stukas v. Streiter, 83 A.D.3d 18 (2d Dept. 2011), which held that a plaintiff must establish an issue of fact as to causation only where a moving defendant sufficiently established its entitlement to summary judgment on that specific issue. The Second Department’s opinion in Stukas identified its own prior decision in Amsler v. Verrilli, 119 A.D.2d 786 (2d Dept. 1986), as the source of a line of cases reciting the rule that once a defendant establishes either that there was no departure from accepted practice or that any departure was not a cause of injury, the burden shifts to the plaintiff to establish both a departure and causation. This standard came to be cited by the other three departments of the Appellate Division in some of their decisions, but it was expressly disavowed by the Second Department in Stukas.

The second column on the subject, December 2015, noted that there continued to be decisions from the other three Appellate Division departments reciting the Amsler rule, despite the renunciation of that rule by the court that created it. That column also noted that in Orsi v. Haralabatos, 20 N.Y.3d 1079 (2013), the Court of Appeals reversed an order granting summary judgment, holding that the Appellate Division correctly found that the plaintiff established an issue of fact as to a departure but erroneously granted summary judgment on the issue of causation, since the defendants “failed to meet their initial burden of showing that any departure from the standard of care was not the proximate cause … .”

In his concurring opinion in Pullman, Judge Fahey acknowledged that the issue addressed in Stukas was not presented on the record before the court, but he nevertheless raised the issue because the Appellate Division decision in Pullman had recited the Amsler rule. He then explained the reasoning of Stukas, noting that it “expressly disavowed” Amsler and was supported by language from the Court of Appeals in Alvarez. He also noted that the other departments of the Appellate Division have continued to recite the Amsler rule, thus identifying a split in the Appellate Division. Judge Fahey further noted in a footnote that in Orsi, the court “appears to have applied the Stukas standard ….” While the issue was not before the court, Judge Fahey apparently wanted to make clear his joining in the majority did not indicate his approval of the Appellate Division’s recitation of the Amsler rule. He stated: “The fact that I am joining the majority does not indicate my opinion on the resolution of the split among the Appellate Division Departments on this issue.” We view the concurring opinion in Pullman as yet another indication that the Amsler rule is not the law in New York.


1. See Moore & Gaier, Medical Malpractice, “Clarification of Summary Judgment Standard,” New York Law Journal, June 7, 2011, p. 3; Moore & Gaier, Medical Malpractice, “Further Clarification of Summary Judgment Standard,” New York Law Journal, Dec. 1, 2015, p. 3.