Williams v. Levine: Elevating XLIF to Accepted Neurosurgical Practice and Tightening Expert-Affidavit Standards on Summary Judgment

Introduction

In Williams v. Levine, 2025 NY Slip Op 02962, the Appellate Division, Second Department, confronted allegations of medical malpractice and lack of informed consent following an October 2013 spinal operation that combined an Extreme Lateral Interbody Fusion (“XLIF”) performed by neurosurgeon Dr. Mitchell Levine and an assisting thoracotomy conducted by thoracic surgeon Dr. Laurence Spier. The plaintiff, Rose Williams, contended that the surgeons deviated from accepted medical standards and failed to obtain informed consent for the procedures. When the Supreme Court, Nassau County, granted summary judgment for the defendants, Williams appealed.

The appellate court affirmed, crystallising two principal rules: (1) XLIF, as of 2013 in New York, falls within the accepted standard of neurosurgical care, and (2) a plaintiff opposing summary judgment in a malpractice case must provide a responsive expert affidavit that does more than voice general or speculative criticism—it must engage the defence proof head-on with record-rooted analysis. The decision simultaneously reinforces existing doctrine on informed-consent claims, confirming that a detailed written consent, augmented by deposition testimony, neutralises such claims absent competent contrary evidence.

Summary of the Judgment

The Second Department held that the defendants:

• Met their prima facie burden on medical-malpractice claims by submitting detailed expert affirmations demonstrating no departure from accepted standards in performing an XLIF and thoracotomy.
• Met their prima facie burden on the informed-consent claim through the plaintiff’s signed consent form and corroborative deposition testimony, establishing disclosure of alternatives and foreseeable risks.
• Faced no triable issues of fact, because the plaintiff’s opposing expert affirmation was “conclusory and speculative,” failing to confront the defence experts’ reasoning or show that XLIF was outside accepted practice in 2013.

Accordingly, the Appellate Division affirmed dismissal of all causes of action against Dr. Levine, Dr. Spier, North Shore University Hospital, and Northwell Health, Inc.

Analysis

Precedents Cited and Their Influence

• Kunwar v. Northwell Health (2024) & Mendoza v. Maimonides (2022)
  Re-stated the two essential elements of malpractice: a departure from accepted care and proximate causation. The court in Williams quotes these cases as the definitional springboard.
• Attia v. Klebanov (2021)
  Supplies the standard for a defendant’s prima facie showing on summary judgment—proof of no departure or lack of causation.
• Vargas v. Lee (2022); Wiater v. Lewis (2021)
  Require that a moving defendant “address and rebut any specific allegations” in the plaintiff’s pleadings. In Williams, the defence experts meticulously analysed each allegation concerning XLIF and thoracotomy.
• Weintroub v. Maimonides (2023); Piazza v. NYU Hospitals (2022)
  Establish that once a defendant meets its burden, the plaintiff must produce a non-conclusory expert opinion specifically engaging the defence evidence. The plaintiff in Williams failed this hurdle.
• Tsitrin v. New York Community Hospital (2017); Bum Yong Kim v. North Shore LIJ (2022)
  Emphasise that an expert’s reasoning must be tethered to the record—not merely ipse dixit. The court cites these when labelling the plaintiff’s expert “speculative.”
• Perez v. St. John’s Episcopal Hospital South Shore (2005)
  Noted for the rare circumstance in which a procedure is alleged to be “entirely outside” accepted practice. The plaintiff tried to invoke Perez; the court found no evidence XLIF met that extreme standard.
• Ciceron v. Gulmatico (2023); Cox v. Herzog (2021); Gilmore v. Mihail (2019)
  Lay out the three elements of a lack-of-informed-consent claim. The court reproduces the test verbatim.
• Pirri-Logan v. Pearl (2021); Fairchild v. Lerner (2024); Khosrova v. Westermann (2013)
  Provide precedent that a detailed consent form, coupled with testimony, can defeat an informed-consent claim. The defendants’ documentation in Williams mirrors the successful approach in these cases.
• Tardio v. Saleh (2021)
  Bars a party from creating “sham” issues of fact by submitting affidavits contradicting earlier deposition testimony. Williams’s post-deposition affidavit was discounted under this doctrine.

Legal Reasoning of the Court

1. Defendants’ Prima Facie Showing
   • Two board-certified experts (one neurosurgery, one thoracic surgery) provided comprehensive affirmations.
   • They described the surgical indications, technique, intra-operative findings, and postoperative course.
   • They linked those facts to peer-reviewed literature and contemporary guidelines, concluding there was no deviation.
   • They addressed each allegation in Williams’s Bill of Particulars, satisfying Vargas/Wiater.
2. Plaintiff’s Failure to Rebut
   • The single opposing expert (a neurosurgeon) issued an affidavit lacking citations and conflating XLIF with other lumbar approaches.
   • It offered “possibilities” rather than probabilities, did not discuss thoracotomy technique at all, and ignored medical records showing informed pre-operative decision-making.
   • Under Weintroub and Tsitrin, such an affidavit is legally inadequate.
3. XLIF as Accepted Practice
   • Williams argued XLIF was “experimental” in 2013. The defence experts provided journal articles and FDA data showing the technique had been widely adopted since 2006.
   • The court held that XLIF was not outside the mainstream, distinguishing Perez (where leeches were used contrary to standard burn care, an outlier practice).
4. Informed-Consent Analysis
   • Detailed consent form listed: open fusion, XLIF, TLIF, non-operative alternatives, nerve injury, infection, hardware failure, adjacent segment disease.
   • Deposition transcripts confirmed the discussions were held in lay terms.
   • Williams could not show a reasonably prudent patient would have declined surgery had she known more.
5. Contradictory Affidavit Doctrine
   • Williams’s post-motion affidavit claimed “no one ever mentioned XLIF.” Her deposition said “Dr. Levine explained the new lateral fusion.” Under Tardio, the contradiction could not raise a factual dispute.

Impact on Future Litigation and Medical Practice

1. Solidifying XLIF’s Status – By explicitly recognising XLIF as within the accepted standard as early as 2013, the decision will make it difficult for future plaintiffs to portray the technique as experimental in New York courts.

2. Higher Bar for Opposing Experts – The court’s emphatic rejection of “conclusory and speculative” affidavits signals that plaintiffs must marshal robust, referenced expert opinions at the summary-judgment stage. This raises litigation costs but promotes evidentiary rigor.

3. Consent Documentation Best Practices – Hospitals and surgeons are reminded that detailed consent forms paired with contemporaneous discussions and documented in the record remain a potent shield against informed-consent claims.

4. Sham Affidavit Disincentive – By invoking Tardio, the Second Department fortifies a line of cases deterring litigants from contradicting sworn deposition testimony to survive summary judgment.

5. Systemic Efficiency – The decision may reduce the volume of marginal malpractice suits proceeding to trial, redirecting judicial resources to cases with genuine factual disputes.

Complex Concepts Simplified

• Extreme Lateral Interbody Fusion (XLIF) – A minimally invasive spinal fusion technique where the disc is accessed through a small incision in the patient’s side, avoiding major back muscles.
• Thoracotomy – Surgical opening of the chest wall, here used to provide neural monitoring access and ensure safe disk removal during XLIF at thoracolumbar levels.
• Summary Judgment – A procedural device allowing the court to decide a case without trial when no material facts are genuinely disputed.
• Prima Facie Burden – The initial obligation on a moving party (here, the defendants) to present enough evidence to shift the burden of proof to the opponent.
• Conclusive vs. Conclusory – A conclusive expert opinion is well-reasoned and fact-based; a conclusory opinion merely states conclusions without analysis.
• Lack of Informed Consent – A separate tort from malpractice focusing on whether the patient was adequately informed, not whether the surgery was negligent.
• Sham Affidavit Rule – A party cannot create a factual dispute by submitting an affidavit that contradicts prior sworn testimony.

Conclusion

Williams v. Levine serves as a consequential affirmation that Extreme Lateral Interbody Fusion was a mainstream, accepted surgical option by 2013 and clarifies the evidentiary standards governing summary-judgment motions in medical-malpractice suits. The decision underscores that:

• Defence experts must comprehensively address each allegation, but once they do, the plaintiff’s expert must respond with equal specificity and scientific support.
• Detailed consent processes, memorialised both in writing and in testimony, remain decisive in defeating informed-consent claims.
• Courts will not entertain contradictory affidavits designed solely to avoid dismissal.

Collectively, the ruling enhances predictability in malpractice litigation, guides practitioners on documentation best practices, and cements XLIF’s legitimacy within neurosurgical care. Litigants and counsel alike would do well to internalise the Second Department’s message: speculative criticism and perfunctory paperwork will no longer suffice where rigorous, record-based medicine and meticulous documentation are presented in defence.