Risk Management

Motion for Summary Judgment

OMIC Digest, Summer, 1991

ALLEGATION: Insured ophthalmologist allegedly breached the standard of care in treating a patient later diagnosed with maxillary sinus carcinoma.



Just as a disappointing medical outcome does not necessarily indicate physician malpractice, the filing of a lawsuit against a physician does not always mean years of litigation and court proceedings. The burden of proof still rests with the plaintiff to prove that there was a breach in the standard of care. There are times when defense counsel can have the matter dismissed by filing a Motion for Summary Judgment.

A Motion for Summary Judgment is a device designed to obtain a disposition of a case on its merits without resorting to a long trial. In American jurisprudence, the jury is responsible for weighing the facts and the judge is responsible for deciding the legal issues. In essence, the Motion states that there are no issues of fact for a jury to decide and that only questions of law are involved, allowing the judge the latitude to make an independent decision.

OMIC has been successful in having a number of lawsuits dismissed against insured physicians by securing a Summary Judgment.

Case Summary

The plaintiff was a 66-year-old woman with a history of heart disease and sinusitis. She was referred to the insured ophthalmologist by her family practitioner for evaluation of headaches and numbness around the right cheek. Examination revealed a definite impairment of sensation on the right side probably secondary to previous sinus disease. The left eye, however, had a pterygium which was excised. The patient failed to return for follow-up and never returned to the insured’s care. Instead, she saw an ENT specialist who cleaned her left ear and prescribed medication. Five months after the pterygium excision, she saw an otolaryngologist who ordered a CT scan which revealed maxillary sinus carcinoma. Surgery was performed to remove the right eye and part of the jaw and roof of the mouth.

The plaintiff filed suit against the ophthalmologist, the family practitioner and the ENT specialist.


OMIC filed a Motion for Summary Judgment accompanied by affidavits from experts setting forth the standard of care for the ophthalmological treatment of plaintiff’s medical condition, defendant’s compliance therewith and plaintiff’s alleged damages. In addition, the Motion argued that the plaintiff had failed to submit any expert testimony suggesting that the insured breached the standard of care or to raise any fact issues against the insured.

The court granted the Motion and ruled that the defendant ophthalmologist was entitled to judgment as a matter of law. The plaintiff elected not to appeal the ruling and the case against the OMIC insured was dismissed.

Risk Management Principles and Commentary

Instrumental in obtaining a dismissal was the patient’s chart which documented that the patient told the insured she was being followed by another physician for her sinusitis. This was critical in establishing that the OMIC insured acted within the standard of care and eliminated any issue of fact that he should have referred the patient to an ENT specialist. In addition, the insured charted the failure of the patient to return for a follow-up visit which also provided support for the granting of the Motion for Summary Judgment. The rules for Summary Proceedings to dispose of cases prior to trial vary from jurisdiction to jurisdiction. In most cases, a Motion for Summary Judgment is not a viable option for the defense because the parties do not agree on the factual situation. However, in those instances where the issues of fact have been determined and the evidence supports the defendant-physician’s care, a Motion for Summary Judgment can dispose of a case and conclude the matter once and for all.


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Six reasons OMIC is the best choice for ophthalmologists in America.

Best at defending claims.

An ophthalmologist pays nearly half a million dollars in premiums over the course of a career. Premium paid is directly related to a carrier’s claims experience. OMIC has a higher win rate taking tough cases to trial, full consent to settle (no hammer) clause, and access to the best experts. OMIC pays 25% less per claim than other carriers. As a result, OMIC has consistently maintained lower base rates than multispecialty carriers in the U.S.