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CG&P Obtains Summary Judgment for a nursing and rehabilitation center

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CG&P Obtains Summary Judgment for a nursing and rehabilitation center

CG&P obtained summary judgment for a nursing and rehabilitation center. In an action for negligence and violations of the New York Public Health Law it was alleged that CG&P’s client, a nursing and rehabilitation center, was negligent during a physical therapy session when the plaintiff, who had just undergone hip replacement surgery, allegedly fell and sustained a fracture. Plaintiff had testified at deposition that he had a vague recollection of falling during physical therapy, although the records of our client did not indicate that any incident occurred. We moved for summary judgment based upon the affidavit of the physical therapist who had a personal recollection of the resident and indicated that no fall occurred during any of the physical therapy sessions. We obtained an affidavit from an orthopedic surgeon who opined that the resident’s injury was a periprosthetic fracture which is a well-known risk of a total hip replacement. We also elicited deposition testimony that the resident complained of pain in his hip after ambulating to the bathroom against medical advice. Plaintiff submitted affidavits from two experts, an orthopedic surgeon and a physical therapist. The court rejected plaintiff’s expert affidavits as being conclusory and speculative. The court accepted our argument that plaintiff’s vague recollection of falling while performing physical therapy was not sufficient to establish that an incident occurred. Accordingly, our summary judgment motion was granted and all claims were dismissed against our client. The case was handled by CG&P Partner Michele R. Levin and Of Counsel Richard M. Fedrow.