Your lawyer tells you that you have a solid case.Your lawyer tells you that your case has been reviewed by a medical expert who feels that there were departures from good and accepted medical care that caused you permanent harm. You have met all the requirements to bring your lawsuit in the Supreme Court (the trial level court) in the State of New York.You proceed with discovery- exchanging medical records and other papers. You appear for a deposition (a question and answer session where the defense lawyer gets to question you at length about what happened to you and what injuries you suffered because of the malpractice). The doctors who treated you are questioned by your lawyer.Your lawyer continues to tell you that you have a good case. Except for one problem...The defense lawyers have now asked the trial Court to dismiss your case. They've made a motion for summary judgment. There are many reasons a defense lawyer could use to ask for your case to be dismissed. The most common one is to claim that there simply is no malpractice. The defense lawyer will usually support this claim with statements from the doctors you have sued where they swear up and down that there is no evidence of wrongdoing.
They may claim that whatever happened to you was out of their control, or a "known complication" that can occur with your procedure/treatment/medical care. The defense will claim that there is no "Question of fact" as the facts are not contested. They will also claim that the only issue is one of 'law' which must be decided by the Judge assigned to the case, and not one of 'fact' which would usually be decided by a jury of one's peers.
When faced with a defense lawyer's request to dismiss your case, your lawyer must now bring out all of his ammunition in order to fend off this potentially lethal assault on your claim. Your attorney will prepare a detailed statement for you to sign which explains in detail the facts of your case. It will also set forth why you believe you have a valid and meritorious case. In New York, your attorney is then required to have your expert detail the specific reasons why he or she believes there is a valid case. Your lawyer's 'affirmation in opposition' will detail all of the factual inconsistencies that exist in the medical care rendered to you.
