Brain Injury Lawsuit Filed Against Several Doctors for Medical Malpractice*

The plaintiffs in this brain injury lawsuit are Moira Ace as the executor of Connie Aspen (deceased). The defendants are 12 doctors, one nurse and one hospital.

This is a motion seeking damages for medical malpractice. The plaintiff alleges the defendants were negligent in their care of the deceased while she was in the hospital from February 1, 2000 to March 15th, 2000.

The specific complaint is that the defendants failed to prevent the deceased's extubation and failed to monitor her oxygen levels after extubation to make sure they were adequate. Further that these negligent oversights cause anoxia and significant brain damage. This incident preceded the filing of this brain injury lawsuit.

The court said the plaintiff has to make a prima facie "showing of entitlement to judgment by providing sufficient evidence to show the absence of material issues of fact."

The judge further indicated that failure to make such a case would mean the denial of their motion no matter what the opposing papers said. If on the other hand they meet their burden, it shifts to the opposing party to prove the existence of a material issue of fact.

The required elements of proof in a medical malpractice action are "a deviation from accepted practice and evidence that the departure was the proximate cause of injury or damages."

The court concluded the defendants in this brain injury lawsuit failed to meet their burden of proof, as they did not offer evidence in an admissible form. Their motion was therefore denied.

The court noted there was an irony in this situation in that if the defendants had met their burden, it would have shifted back to the plaintiff and the plaintiff would not have met her burden of proof.