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Issues of literature and an expert’s competency to render an opinion – *a must read* February 21, 2010

Ellis v Eng, 2010 NY Slip Op 01453 (2d Dept. 2010)

This medical malpractice case, I think, is a must read for many reasons.  First, it discusses the issues involving experts offering opinions outside their areas of expertise.  We have been down this path before, but we may have some guidance here as to how to qualify an otherwise unqualified expert.  But second, there is a discussion as to the use of literature and the burden of production of the same.  This is huge for many reasons.  I will share my thoughts at the end of the quoted passage, immediately below.

“In support of their separate motions for summary judgment, Eng, Delphic Surgical, and Gusset established their prima facie entitlement of judgment as a matter of law by submitting evidence demonstrating that they did not depart from accepted standards of medical practice by their failure to recommend adjuvant therapy after the decedent’s surgery, failure to obtain his informed consent for foregoing adjuvant therapy, and failure to refer him to an oncologist. Their submissions included, inter alia, evidence that the clinical practice guidelines of the American Society of Clinical Oncology in 2002 did not support the use of adjuvant therapy for stage II colon cancer. In opposition, the plaintiffs failed to raise a triable issue of fact.

The plaintiffs contend that they were not required to show that clinical practice guidelines required the recommendation of chemotherapy, since clinical practice guidelines “are merely one method of informing the opinion of a qualified medical expert.” Although, in general, evidence of guidelines is not conclusive, and such evidence is not a necessary element of a plaintiff’s proof (see Hinlicky v Dreyfuss, 6 NY3d 636, 645, n5), in this case, the plaintiffs’ experts relied on guidelines.

The plaintiffs’ surgical expert claimed that, since 2000, the American Society of Clinical Oncology recommended chemotherapy for stage II patients with at least one poor prognostic indicator. Since the surgical expert’s specialty was laparoscopic, trauma, and general surgery—not cancer surgery or gastrointestinal surgery—the expert was required to lay a foundation in support of the reliability of the opinions rendered (see Mustello v Berg, 44 AD3d 1018, 1019), and could not rely upon conclusory assertions (see Romano v Stanley, 90 NY2d 444, 452). Since the foundation for the expert’s opinion was the guidelines cited, the validity of the expert’s opinion was dependent on the validity of those guidelines. The plaintiffs’ second expert—an oncologist—also referred to guidelines—this time of the “American Cancer Association [sic]”—which were not produced, and which the expert for Eng and Delphic Surgical claimed did not exist. Therefore, the guidelines of the American Society of Clinical Oncology were crucial to the plaintiffs’ position.

The purported guidelines of the American Society of Clinical Oncology for 2000 are not in the record. The recommendations of the American Society of Clinical Oncology for 2004 are in the record. Those recommendations stated that even in 2004, there was no definite consensus that adjuvant therapy was warranted for high-risk stage II colon cancer patients. Thus, there was no proper basis for the opinion that failure to recommend adjuvant therapy in 2002 was a departure from accepted medical practice.

The plaintiffs further contend that a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir]), would be appropriate to ascertain the reliability of the plaintiffs’ evidence that chemotherapy should have been recommended. A Frye hearing is used to determine whether the expert’s methodologies in arriving at a conclusion are accepted as reliable within the scientific [*4]community; for example, whether the expert’s methodologies in determining the stage of the patient’s cancer are sufficiently accepted as reliable to permit the expert to testify as to his or her results (see Page v Marusich, 51 AD3d 1201). However, where, as here, the challenge is to the reliability of the expert’s conclusions, not whether the expert’s methodologies or deductions are based upon principles that are sufficiently established to have gained general acceptance as reliable, there is no basis for a Frye hearing (see Lipschitz v Stein, 65 AD3d 573, 576; Nonnon v City of New York, 32 AD3d 91, 103, affd 9 NY3d 825).”

My observations:

I have to state that the non no-fault cases that the Appellate Divisions have recently decided have had a more profound impact on no-fault practice in the last six (6) months than the no-fault cases that have been decided.  This case may have extensive ramifications within the no-fault realm, because this case involves the use of literature in the molding of a peer reviewer’s determination as to the necessity of a given service.

We saw the other day in Progressive Med., Inc. v Allstate Ins. Co., 2010 NY Slip Op 50219(U)(App. Term 2d Dept. 2010), how it was important that the literature be probative of the underlying issue or the testimony will be of no significance.  The Appellate Term in Progressive agreed with the District Court that the literature the expert cited to was of no value where the peer doctor “[r]eferred to a report from his board- certifying academy regarding one type of equipment at issue….[of which] the reliability of [the study underlying the report] had not been established.”

What we see here, however, is a complete 180 as to the role of medical literature in medical malpractice and no-fault cases.  Not only are medical treatises permitted to be discussed on direct examination of an expert witness, but the failure to properly cite to a probative study or piece of literature will torpedo a case.  Ellis, I think, represents are marked shift in this arena.  Of course, this was a trend you have seen in my prior posts on this blog.

This brings us to the next issue, and this is somewhat related to the Progressive case.  Must the literature, which we are now going to allow to be used as part of an expert’s direct examination, be produced?  The answer looks to be a qualified no.  Why qualified?  Because of the following line in Ellis: “The plaintiffs’ second expert—an oncologist—also referred to guidelines—this time of the “American Cancer Association [sic]”—which were not produced, and which the expert for Eng and Delphic Surgicalclaimed did not exist. Therefore, the guidelines of the American Society of Clinical Oncology were crucial to the plaintiffs’ position .

A court will thus presume that the cited to treatise exists and is reliable, unless an opposing expert says that the treatise does not exist or does not support the proffering expert’s theory.

In a standard no-fault trial where the plaintiff does not bring a rebuttal witness, this case may be of minimal utility to the plaintiff.  Should the plaintiff have an expert and the cited to literature appears not to exist or to be improperly analyzed, then the plaintiff may be able to force defendant’s expert to make an offer of proof midstream during his testimony viz a vi producing the quoted literature, lest the proffering expert’s testimony be stricken from the record.

What really interests me is how this case will play out in the arbitration front.  Various Applicant attorneys argue that the Respondent insurance carrier is under an affirmative duty to produce cited to medical literature, in response to Applicant’s so-called discovery demands.  I have never subscribed to the theory that the Respondent must produce the literature since it may be found on the internet.  Thus, it would seem that an Applicant will need an affidavit from his own expert saying the literature does not exist or does not stand for the proposition it espouses in order to force Respondent to produce the same.

As it relates to experts of an improper specialty offering an opinion outside the scope of their expertise, it looks like familiarity with relevant literature may assist in allowing a basic foundation to be laid.  But this case is not clear, and one would be asking for trouble to have, for example, an internist commenting on a surgeon’s records or a physiatrist commenting on a chiropractor’s records.

Issues of literature and an expert's competency to render an opinion – *a must read* February 21, 2010

Ellis v Eng, 2010 NY Slip Op 01453 (2d Dept. 2010)

This medical malpractice case, I think, is a must read for many reasons.  First, it discusses the issues involving experts offering opinions outside their areas of expertise.  We have been down this path before, but we may have some guidance here as to how to qualify an otherwise unqualified expert.  But second, there is a discussion as to the use of literature and the burden of production of the same.  This is huge for many reasons.  I will share my thoughts at the end of the quoted passage, immediately below.

“In support of their separate motions for summary judgment, Eng, Delphic Surgical, and Gusset established their prima facie entitlement of judgment as a matter of law by submitting evidence demonstrating that they did not depart from accepted standards of medical practice by their failure to recommend adjuvant therapy after the decedent’s surgery, failure to obtain his informed consent for foregoing adjuvant therapy, and failure to refer him to an oncologist. Their submissions included, inter alia, evidence that the clinical practice guidelines of the American Society of Clinical Oncology in 2002 did not support the use of adjuvant therapy for stage II colon cancer. In opposition, the plaintiffs failed to raise a triable issue of fact.

The plaintiffs contend that they were not required to show that clinical practice guidelines required the recommendation of chemotherapy, since clinical practice guidelines “are merely one method of informing the opinion of a qualified medical expert.” Although, in general, evidence of guidelines is not conclusive, and such evidence is not a necessary element of a plaintiff’s proof (see Hinlicky v Dreyfuss, 6 NY3d 636, 645, n5), in this case, the plaintiffs’ experts relied on guidelines.

The plaintiffs’ surgical expert claimed that, since 2000, the American Society of Clinical Oncology recommended chemotherapy for stage II patients with at least one poor prognostic indicator. Since the surgical expert’s specialty was laparoscopic, trauma, and general surgery—not cancer surgery or gastrointestinal surgery—the expert was required to lay a foundation in support of the reliability of the opinions rendered (see Mustello v Berg, 44 AD3d 1018, 1019), and could not rely upon conclusory assertions (see Romano v Stanley, 90 NY2d 444, 452). Since the foundation for the expert’s opinion was the guidelines cited, the validity of the expert’s opinion was dependent on the validity of those guidelines. The plaintiffs’ second expert—an oncologist—also referred to guidelines—this time of the “American Cancer Association [sic]”—which were not produced, and which the expert for Eng and Delphic Surgical claimed did not exist. Therefore, the guidelines of the American Society of Clinical Oncology were crucial to the plaintiffs’ position.

The purported guidelines of the American Society of Clinical Oncology for 2000 are not in the record. The recommendations of the American Society of Clinical Oncology for 2004 are in the record. Those recommendations stated that even in 2004, there was no definite consensus that adjuvant therapy was warranted for high-risk stage II colon cancer patients. Thus, there was no proper basis for the opinion that failure to recommend adjuvant therapy in 2002 was a departure from accepted medical practice.

The plaintiffs further contend that a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir]), would be appropriate to ascertain the reliability of the plaintiffs’ evidence that chemotherapy should have been recommended. A Frye hearing is used to determine whether the expert’s methodologies in arriving at a conclusion are accepted as reliable within the scientific [*4]community; for example, whether the expert’s methodologies in determining the stage of the patient’s cancer are sufficiently accepted as reliable to permit the expert to testify as to his or her results (see Page v Marusich, 51 AD3d 1201). However, where, as here, the challenge is to the reliability of the expert’s conclusions, not whether the expert’s methodologies or deductions are based upon principles that are sufficiently established to have gained general acceptance as reliable, there is no basis for a Frye hearing (see Lipschitz v Stein, 65 AD3d 573, 576; Nonnon v City of New York, 32 AD3d 91, 103, affd 9 NY3d 825).”

My observations:

I have to state that the non no-fault cases that the Appellate Divisions have recently decided have had a more profound impact on no-fault practice in the last six (6) months than the no-fault cases that have been decided.  This case may have extensive ramifications within the no-fault realm, because this case involves the use of literature in the molding of a peer reviewer’s determination as to the necessity of a given service.

We saw the other day in Progressive Med., Inc. v Allstate Ins. Co., 2010 NY Slip Op 50219(U)(App. Term 2d Dept. 2010), how it was important that the literature be probative of the underlying issue or the testimony will be of no significance.  The Appellate Term in Progressive agreed with the District Court that the literature the expert cited to was of no value where the peer doctor “[r]eferred to a report from his board- certifying academy regarding one type of equipment at issue….[of which] the reliability of [the study underlying the report] had not been established.”

What we see here, however, is a complete 180 as to the role of medical literature in medical malpractice and no-fault cases.  Not only are medical treatises permitted to be discussed on direct examination of an expert witness, but the failure to properly cite to a probative study or piece of literature will torpedo a case.  Ellis, I think, represents are marked shift in this arena.  Of course, this was a trend you have seen in my prior posts on this blog.

This brings us to the next issue, and this is somewhat related to the Progressive case.  Must the literature, which we are now going to allow to be used as part of an expert’s direct examination, be produced?  The answer looks to be a qualified no.  Why qualified?  Because of the following line in Ellis: “The plaintiffs’ second expert—an oncologist—also referred to guidelines—this time of the “American Cancer Association [sic]”—which were not produced, and which the expert for Eng and Delphic Surgicalclaimed did not exist. Therefore, the guidelines of the American Society of Clinical Oncology were crucial to the plaintiffs’ position .

A court will thus presume that the cited to treatise exists and is reliable, unless an opposing expert says that the treatise does not exist or does not support the proffering expert’s theory.

In a standard no-fault trial where the plaintiff does not bring a rebuttal witness, this case may be of minimal utility to the plaintiff.  Should the plaintiff have an expert and the cited to literature appears not to exist or to be improperly analyzed, then the plaintiff may be able to force defendant’s expert to make an offer of proof midstream during his testimony viz a vi producing the quoted literature, lest the proffering expert’s testimony be stricken from the record.

What really interests me is how this case will play out in the arbitration front.  Various Applicant attorneys argue that the Respondent insurance carrier is under an affirmative duty to produce cited to medical literature, in response to Applicant’s so-called discovery demands.  I have never subscribed to the theory that the Respondent must produce the literature since it may be found on the internet.  Thus, it would seem that an Applicant will need an affidavit from his own expert saying the literature does not exist or does not stand for the proposition it espouses in order to force Respondent to produce the same.

As it relates to experts of an improper specialty offering an opinion outside the scope of their expertise, it looks like familiarity with relevant literature may assist in allowing a basic foundation to be laid.  But this case is not clear, and one would be asking for trouble to have, for example, an internist commenting on a surgeon’s records or a physiatrist commenting on a chiropractor’s records.

The Appellate Term finds the defense of lack of medical necessity was not substantiated February 18, 2010

Progressive Med., Inc. v Allstate Ins. Co., 2010 NY Slip Op 50219(U)(App. Term 2d Dept. 2010):

“On cross-examination, the witness testified that he relied on several out-of-court documents in reaching his conclusion. He also testified that, in his report, he referred to a report from his board- certifying academy regarding one type of equipment at issue. Although plaintiff had previously stipulated to qualifying the witness as an expert, its attorney subsequently objected to this testimony on the ground that it was based upon records that were not in evidence and upon a study, the reliability of which had not been established. The court sustained the objection and ordered the testimony stricken.

“Based upon the court’s statements that the only issue for trial was medical necessity and that a claim form had been submitted and timely denied, as well as defendant’s presentation of its witness instead of moving for judgment pursuant to CPLR 4401, we find that the parties agreed that the sole issue for trial was defendant’s defense of lack of medical necessity. The record [*2]reveals no basis, under the specific facts of this case, for the court’s finding that plaintiff was required to submit a claim form in order to establish, prima facie, “the health benefit’s medical necessity.”

On the other hand, on the scant record provided to this court, there is no basis to disturb the court’s decision to strike defendant’s witness’s testimony. Plaintiff advanced what was, in effect, a hearsay objection. Defendant failed to demonstrate either that the testimony did not rely on out-of-court documents for the truth of the matters stated therein, or that the documents were being relied upon for their truth but fell within an exception to the rule against hearsay. Consequently, we cannot say that it was an improvident exercise of discretion for the court to strike the testimony.”

It looks like the attorney for the defense failed to lay a proper foundation to allow the doctor to testify about the medical records.  What needed to be asked was: how the doctor received the records; what they represented; whether the assignor’s name was on the records; whether the date of loss on the records corresponded to when the accident occurred; whether the claim number on the documents matched the actual claim number;  whether there was other information that would correlate the documents to the assignor; and the veracity of the journal articles.

The courts in the realm of no-fault litigation will generally allow an expert to testify about the documents that purport to be those representing the treatment of the alleged assignor.  The only thing an attorney has to do is find some correlating link between the medical reports and the assignor.  That link is almost always in the reports.  If the link is not there, then look further – you should find it.  If you cannot find that link at all, then the doctor probably did not review the entire medical record, and this is rife with its own issues, none of which are good for the insurance carrier.

This case also asks the following question: how can a medical necessity summary judgment motion be made without annexing the medical records?  Presumably, the attached medical records allow for the inference that they represent the treatment notes of the alleged assignor.  Without those notes, it looks like a peer review by itself must fail on constraint of this case and the others I have previously discussed.

Defaults and interest February 17, 2010

This “default” case is quite strange.  SZ Med., P.C. v Lumbermens Mut. Cas. Co., 2010 NY Slip Op 20044 (App. Term 2d Dept. 2010).

The majority and the dissent have a different take on the facts and circumstances of this matter.  At its core, this case involves a summary judgment victory on default, where the lower court vacated the default but the appellate term reversed.  The details are where this case gets nasty.

It is alleged that the judgment on the underlying order was not entered for 4 years after the victory on the motion.  A motion to vacate was not filed for 8 months after a proposed judgment was served upon Defendant.  There are allegations of improprieties involving an attorney promising to work something out, yet allegedly reneging on his promise.  There are checks representing 40% of the balance that are alleged to be cashed, but have the word “void” written on them.  It appears there are no denial of claim forms, so as to substantiate the over billing defense.  I am assuming the affidavit of the carrier is equally devoid of any facts to clarify the matter.  And then, there is 65-3.9(d)(the interest tolling provision involving the failure to prosecute a claim) which made its debut in appellate case law today.  Also, Mr. Amos Weinberg’s name and his suspension from the practice of law were mentioned in the dissent.  A lot of stuff for a 5015(a)(1) vacatur of default case.

That sums up the facts of this case.

The real issue that caused concern, for both the minority and the majority tangentially, involved the plaintiff waiting 4 years to enter a judgment, and collecting 24% per annum on the principle sum from when he was granted leave to enter judgment to when the judgment was entered.  During the pre-LMK era, this was a non-issue because every late denial lost the interest toll.  Thus, nobody concerned themselves with 3.9(d), since there were so many old  denials and defective denials in circulation. The focus was on how to stop Pre-LMK non tolled penalty interest.  Since it has been held that interest always tolls until an action is commenced, save those instances where a bill is not denied, the only way to obtain a return that is 12 times prime is to put a matter into litigation and sit on it.  Some Plaintiffs do this, and given the rate of return that no-fault interest offers, it is not necessarily a bad idea from a business perspective.

But now that we are post LMK, there is now going to be a focus on closing the last loop hole to collect interest: 3.9(d).  I think we all knew this was coming.  Admittedly, this was not the best case to argue this point because the defendant’s papers seeking to vacate the default seemed porous.

As to the part about Mr. Weinberg breaking his promise, this could hold water if there was a better showing of a meritorious defense.  Through reading thousands of decisions, the trend in the Second Department and the other Appellate Divisions is that the better the defense, the more forgiving the court will be as to finding a reasonable excuse.  This is not always true – and we have seen many cases where a showing of a strong meritorious defense did not make up for a weak reasonable excuse.  Since there was no meritorious defense through the presented proofs, the court turned a blind eye to this potential issue.

This is how I read this case.  But mark my words: 3.9(d) will be the next monster that attacks the plaintiffs bar.  And honestly, if an action is not being actively prosecuted, should a medical provider really be earning 24% on that money?  It does not seem equitable to me.

As a footnote, if you want to read about how equity has the ability to turn no-fault practice on its head, read the last no-fault wrap up that Mr. Barshay and Mr Gottlieb published in the New York Law journal.

A person who parks a truck on the side of the road, exits it and directs traffic is not using or operating the truck February 16, 2010

Gallaher v Republic Franklin Ins. Co., 2010 NY Slip Op 01143 (4th Dept. 2010)

“we agree with defendant that the court erred in determining that there is an issue of fact whether plaintiff was covered under the policy as a person occupying the truck. At the time of the accident, plaintiff had exited the fire company’s truck and was directing traffic away from the scene of a motor vehicle accident. Plaintiff’s conduct in directing traffic was “unrelated to the [truck]” and was not incidental to his exiting it (Matter of Travelers Ins. Co. [Youdas], 13 AD3d 1044, 1045). Thus, under the facts of this case, plaintiff was not “occupying” the truck within the meaning of that term in the policy”

Use and operation issues are usually fact sensitive and can go either way many times.  In this case, the tipping point was that Plaintuff’s actions were not incidental to his use of the vehicle.  This fact patter is similar to Progressive Cas. Ins. Co. v. New York State Ins. Fund, 47 A.D.3d 633 (2d Dept. 2008).  But See, Mazzarella v. Paolangeli, 63 A.D.3d 1420 (3d Dept. 2009).