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On the mark March 17, 2010

IAV Med. Supply, Inc. v Progressive Ins. Co., 2010 NY Slip Op 50433(U)(Civ. Ct. Richmond Co. 2010)

Here is a civil court decision from Judge Dollard in Civil Richmond, which is well written and correct in all respects on the law.  First, she found that a 3101(d) demand, although tardy, was proper since plaintiff was not in any way prejudiced.   Second, she found that a claims representative could not lay a foundation for entry into evidence of the report of a a non-testifying peer review doctor.  Why someone would go down this road, especially with Pine Hollow being reversed, boggles my mind.  Moreover, I also tend to think that the admission of a peer report into evidence is tantamount to improper bolstering, since the report memorializes what the doctor – or his substitute – will testify about.  It is similar to a police officer telling a jury that the complainant identified the defendant, after the complainant herself identified the defendant to the jury.   Those of you who have a criminal practice know that this is improper.   People v Trowbridge, 305 NY 471 (1953).

As to whether the doctor, through his testimony satisfied his burden of persuasion, I have no idea; and for purposes of this discussion, it is irrelevant.  What is relevant, however, is the path this court took to reach its decision.  And this was “on the mark”.

A medical malpractice case that could read like a no-fault case (well sort of) March 16, 2010

I tend to think that the more medical practice summary judgment motion cases you read, the more you see the interplay between no-fault and medical malpractice matters, at least procedurally on motion papers.  Here is another one from the First Department

Cupelli v Lawrence Hosp., 2010 NY Slip Op 02000 (1st Dept. 2010)

“The only reference in plaintiff’s expert’s affirmation to Dr. Provenzano states that “[a] note appears in the [hospital] records that [the ER physician] discussed the case with Dr. Provenzano.” As such affirmation simply does not address the medical evidence and opinion contained in Dr. Provenzano’s expert’s affirmation the prima facie sufficiency of which is clear and indeed not challenged by plaintiff on appeal, no issues of fact are raised as to Dr. Provenzano’s malpractice.”

You can translate “medical evidence” (malpractice speak) to “factual basis” (no-fault speak), and opinion (malpractice speak) to “medical rationale” (no-fault speak).

By the way, note that the Appellate Division held that the doctor has to address the medical evidence and the opinion based upon the medical evidence.  Plaintiff did not do this in Infinity Health Prods., Ltd. v Mercury Ins. Co., 2010 NY Slip Op 50385(U)(App. Term 2d Dept. 2010).  My discussion of that case is here.

Collateral estoppel does not apply to different cases even if some of the issues overlap March 13, 2010

Gorelik v Gorelik, 2010 NY Slip Op 01922 (2d Dept. 2010)

“Contrary to the plaintiff’s contention, the Supreme Court correctly declined to give collateral estoppel effect to the finding made in a Bankruptcy Court order (entered in adversary proceedings between the parties) as to his financial circumstances, in the absence of an identity of issues actually litigated and decided between those proceedings and the within action”

This case is relevant because many times, a court will render a published opinion and deem a certain expert not to be credible.  A party in an unrelated case involving a similar diagnostic test or course of treatment will then cite to the adverse opinion and argue, either as a matter of law or fact, that the said doctor’s testimony is not credible.  While this practice always seemed to be unfair, there existed a dearth of case law on this issue.   I would note that Gorelik takes a lot of bite out of that line of argument.

An expert’s affirmation on summary judgment solely citing his profession is generally sufficient March 12, 2010

A reoccurring problem in no-fault cases pending in Nassau County District Court is that certain judges have routinely found that defense experts, within the confines of their peer reviews and IME reports, have been unable to qualify themselves as experts.  My argument has been that this “issue” lacks merit as long as the peer report or IME report lists the specialty of the doctor and, upon challenge, reference is made to the OPR website confirming the specialty of the doctor.  Alternatively, I always make it a point to attach the resume of the peer or IME expert.

It looks like the Appellate Division disagreed with the findings of certain District Court Judges and agreed with my prevailing thought in the matter of Espinal v Jamaica Hosp. Med. Ctr., 2010 NY Slip Op 01917 (2d Dept. 2010):

“In opposition, the plaintiff submitted an affidavit from his treating neurologist, who concluded that hydrocephalus could have developed as a result of the reported assault and aggravated the plaintiff’s preexisting brain injuries. The Supreme Court denied the appellants’ motion, finding that the conflicting expert opinions raised a triable issue of fact as to whether the plaintiff’s hydrocephalus was caused by the alleged assault. We agree.

The appellants’ contention that the plaintiff’s expert was unqualified to give an expert opinion because the plaintiff did not provide evidence of his credentials is without merit. The plaintiff’s expert established his qualifications by attaching a curriculum vitae demonstrating that he was a board-certified neurologist (see Winney v County of Saratoga, 8 AD3d 944, 945). In any event, the expert’s alleged lack of experience is a factor which goes to the weight to be given to his opinion, and not to its admissibility (see Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831; Julien v Physician’s Hosp., 231 AD2d 678, 680; Ariola v Long, 197 AD2d 605). [*2]

Furthermore, the affidavit of the plaintiff’s expert was sufficient to raise a triable issue of fact. “It is well settled that an expert’s opinion must be based on facts in the record personally known to the witness, and that the expert may not assume facts not supported by the evidence in order to reach his or her conclusion”

The rule is as follows.  If a doctor is of the same specialty as the one who rendered the service or committed the malpractice and there is proof of the same, then the doctor’s affidavit or affirmation will be sufficient.  There will not be, in this instance, the requirement that a resume or other demonstrative proof be presented to qualify the doctor as an expert.   Second, if a doctor is of a different specialty as the one who rendered the service or committed the malpractice, then the proponent of the proof will have to go through an accounting of the doctor’s experience, as the Supreme Court required in this case.

An expert's affirmation on summary judgment solely citing his profession is generally sufficient March 12, 2010

A reoccurring problem in no-fault cases pending in Nassau County District Court is that certain judges have routinely found that defense experts, within the confines of their peer reviews and IME reports, have been unable to qualify themselves as experts.  My argument has been that this “issue” lacks merit as long as the peer report or IME report lists the specialty of the doctor and, upon challenge, reference is made to the OPR website confirming the specialty of the doctor.  Alternatively, I always make it a point to attach the resume of the peer or IME expert.

It looks like the Appellate Division disagreed with the findings of certain District Court Judges and agreed with my prevailing thought in the matter of Espinal v Jamaica Hosp. Med. Ctr., 2010 NY Slip Op 01917 (2d Dept. 2010):

“In opposition, the plaintiff submitted an affidavit from his treating neurologist, who concluded that hydrocephalus could have developed as a result of the reported assault and aggravated the plaintiff’s preexisting brain injuries. The Supreme Court denied the appellants’ motion, finding that the conflicting expert opinions raised a triable issue of fact as to whether the plaintiff’s hydrocephalus was caused by the alleged assault. We agree.

The appellants’ contention that the plaintiff’s expert was unqualified to give an expert opinion because the plaintiff did not provide evidence of his credentials is without merit. The plaintiff’s expert established his qualifications by attaching a curriculum vitae demonstrating that he was a board-certified neurologist (see Winney v County of Saratoga, 8 AD3d 944, 945). In any event, the expert’s alleged lack of experience is a factor which goes to the weight to be given to his opinion, and not to its admissibility (see Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831; Julien v Physician’s Hosp., 231 AD2d 678, 680; Ariola v Long, 197 AD2d 605). [*2]

Furthermore, the affidavit of the plaintiff’s expert was sufficient to raise a triable issue of fact. “It is well settled that an expert’s opinion must be based on facts in the record personally known to the witness, and that the expert may not assume facts not supported by the evidence in order to reach his or her conclusion”

The rule is as follows.  If a doctor is of the same specialty as the one who rendered the service or committed the malpractice and there is proof of the same, then the doctor’s affidavit or affirmation will be sufficient.  There will not be, in this instance, the requirement that a resume or other demonstrative proof be presented to qualify the doctor as an expert.   Second, if a doctor is of a different specialty as the one who rendered the service or committed the malpractice, then the proponent of the proof will have to go through an accounting of the doctor’s experience, as the Supreme Court required in this case.