Plaintiff Justine Cristini commenced this action sounding in medical malpractice to recover damages for injuries she alleges were sustained as a result of right shoulder surgery performed by Dr. Andrew Feldman on August 18, 2017, at NYU Langone Hospital. Dr. Feldman's practice, University Place Orthopedics, is also a named Defendant (both collectively, "Defendants"). Other named Defendants are no longer in the case. Plaintiff claims that Defendant Feldman departed from accepted standards of medical care during the procedure, resulting in nerve damage to her right shoulder, arm, hand and fingers. At trial on July 15, 2025, Plaintiff called Dr. Glenn Axelrod, an orthopedic surgeon, as an expert witness to testify regarding the alleged malpractice and proximate causation. Plaintiff also called Defendant Feldman to testify, and she herself testified too. The evidence adduced by Plaintiff demonstrated that during the right shoulder surgery, Defendant Feldman sutured through or around the radial and median nerves.^[FN1] This, according to Plaintiff, established the proximate cause of her numbness and tingling in various right hand fingers; this condition exists to the present day, [*2]testified Plaintiff herself. While conceding that the said suturing took place, Defendants dispute that the suturing constituted malpractice.

After Plaintiff rested at trial on July 15, 2025, Defendants moved to dismiss the complaint on the ground that Plaintiff failed to establish a prima facie case of medical malpractice because she failed to adduce evidence identifying specific acts of negligence which caused her alleged injuries.^[FN2]

Defendants maintain that the mere existence of an injury, by itself, does not establish negligence or medical malpractice. Defendants stress that courts consistently reject the notion that an injury, by itself, proves negligence, citing Henry v Duncan (169 AD3d 421 [1st Dept 2019])^[FN3] ; Hawkins v Brooklyn-Caledonian Hosp. (239 AD2d 549 [2d Dept 1997])^[FN4] ; and Johnson v St. Barnabas Hosp. (52 AD3d 286 [1st Dept 2008])^[FN5] , each holding that an injury alone, without more, does not establish a departure from accepted medical practice.

Defendants cite PJI 2:150, which states that a physician does not guarantee a good result simply by undertaking to provide medical care. In support, they cite Steidel v Nassau (182 AD2d 809 [2d Dept 1992])^[FN6] , which holds that a poor outcome alone does not render a doctor liable for [*3]malpractice. Defendants further cite to De Falco v Long Is. Coll. Hosp. (90 Misc 2d 164 [Sur Ct, Kings County 1997])^[FN7] and Saliaris v D'Emilia (143 AD2d 996 [2d Dept 1988])^[FN8] for the rule that the law does not require a physician to guarantee a successful outcome.

Defendants further maintain that to sustain a claim for medical malpractice, Plaintiff must show both a deviation from accepted medical standards and that this deviation was a proximate cause of the alleged harm, citing Midson v Meeting House Lane Medical Practice, P.C. (230 AD3d 673 [2d Dept 2024]); Abruzzi v Mailer (221 AD3d 753 [2d Dept 2023]); and Blank v Adiyody (220 AD3d 832 [2d Dept 2023]). Defendants argue the alleged suturing and damage to Plaintiff's median and radial nerves are injuries that cannot be relied upon to specify or define acts of malpractice.

Defendants also rely on Oakes v Patel (20 NY3d 633 [2013]), which states that causation is essential both to liability and damages in a medical malpractice action, and that a plaintiff may not recover for injuries that would have occurred due to a preexisting condition even in the absence of malpractice. Defendants contend that nerve conduction and electromyography studies demonstrate that any nerve damage has since healed, and that any residual complaints are unrelated to the surgery and instead attributable to the Plaintiff's typing at work.

To be awarded judgment as a matter of law under CPLR 4401, a moving defendant must demonstrate that, even when the evidence is viewed in the light most favorable to the plaintiff, there is no rational basis for the jury to find in the plaintiff's favor (see Bunea v Cahaly, 37 AD3d 389 [2d Dept 2007]) because the plaintiff has not made out a prima facie case (see Bryan v Staten Island Univ. Hosp., 54 AD3d 793 [2d Dept 2008]). Regarding causation, the plaintiff must present enough evidence to allow a reasonable person to find that the defendant's conduct [*4]more likely than not caused the injury (see Bunea, 37 AD3d 389).

In a medical malpractice case, the plaintiff must show that the defendant physician deviated from accepted medical standards and that this deviation proximately caused the injury, which generally requires expert testimony (see id.). Further, courts have held that where the prima facie case is based solely on expert testimony, the expert must clearly establish that the defendant's conduct deviated from the standard of care; simply disagreeing with defendant's treatment is insufficient (see Sohn v Sand, 180 AD2d 789 [2d Dept 1992], see also Salzman v Alan S. Rosell, D.D.S., P. C., 129 AD2d 833 [3d Dept 1987]).

As noted, Defendants rely on Johnson v St. Barnabas Hosp. (52 AD3d 286) for the proposition that the presence of an injury alone cannot establish a deviation from accepted medical practice. While this is correct, Johnson does not stand for the broader claim advanced by the Defendants in court that an injury can never constitute evidence of a departure when supported by expert testimony. Rather, Johnson merely reiterates that an injury alone does not prove negligence.

In a suit for medical malpractice in Pieter v Polin (148 AD3d 1193 [2d Dept 2017]), the plaintiff failed to present expert testimony showing that the defendants deviated from accepted standards in diagnosing, planning, or performing her cardiac procedures, or that any alleged departures caused her injuries. Accordingly, the Court held that the plaintiff failed to establish a prima facie case of medical malpractice, and the defendant's motion to dismiss pursuant to CPLR 4401 was granted (see id.). Conversely, in Bryan v Staten Island Univ. Hosp. (54 AD3d 793, 794 [2d Dept 2008]), the plaintiff's proffered expert testimony — the defendant's departure from "good and accepted medical practice by mishandling the plaintiff's ilioinguinal nerve thereby causing damage to the nerve" — was sufficient to reverse the trial court's dismissal under CPLR 4401. The appellate court reached this conclusion because a reasonable juror could find that the defendant's handling of the nerve during surgery departed from medical standards and caused the plaintiff's injuries (see id.). Unlike the insufficient evidence in Pieter, Plaintiff here has presented detailed expert testimony from Dr. Axelrod specifically opining that Defendant Feldman deviated from accepted medical practice by suturing around and through the median and radial nerves in the operative area, which directly resulted in Plaintiff's loss of sensation and post-operative pain. Dr. Axelrod's testimony was supported by his examination findings of decreased sensation in the median nerve distribution, loss of thumb function, and reduced grip strength, which directly connect to Defendant Feldman's alleged deviation. Therefore, similar to Bryan, Plaintiff's evidence here is adequate to withstand dismissal under CPLR 4401.

Here, Plaintiff does not rely solely on injuries to prove Defendant Feldman's malpractice. Instead, Plaintiff's expert, Dr. Axelrod, specifically testified that Defendant Feldman deviated from good and accepted medical practice by suturing around the median and through the radial nerves in the operative area, resulting in the Plaintiff's loss of sensation in several fingers as well as post-surgery pain.^[FN9] Dr. Axelrod further testified that the suturing went too deep and that this [*5]technique fell below accepted standards of care, directly linking the deviation to the Plaintiff's alleged injuries. Dr. Axelrod's testimony that malpractice took place also was not based solely upon the fact that nerves were sutured. It was corroborated by his examination findings which included "decreased sensation in the median nerve distribution in the distal forearm and hand, including the typical split ring finger sensation" (Tr at 118). Also, he found "Abnormal sensation and no abductor pollicis brevis function, that is pushing your thumb straight up towards the ceiling with your thumb. Some residual weakness of opposition, holding fingers together. Decreased grip strength compared to the left, which is her non-dominant side." (Id. at 119.) These exam findings are relevant to the causation element of a malpractice claim.

Viewing this testimony in the light most favorable to the Plaintiff, there is sufficient evidence for a rational jury to find that Defendant Feldman departed from good and accepted surgical practice, and that the departure was a proximate cause of Plaintiff's alleged injuries. Plaintiff has not improperly used injuries alone to define the malpractice but instead presented specific expert evidence identifying both the deviation and the causal connection, as required by well-settled law.

Accordingly, it is hereby ORDERED that Defendants' motion for judgment as a matter of law under CPLR 4401 is DENIED.