Attacking an expert based upon his religion leads to reversal

Matter of State of New York v Andrew O., 2011 NY Slip Op 02715 (2011)

This from the Court of Appeals.  In a Mental Health Law Article 10 sexual management proceeding, the Attorney General commenced a Civil Commitment proceeding against a felon convicted of a sexual offense who was nearing his release date from prison.  A jury trial occurred and the State proved through clear and convincing evidence that the soon to be released felon required management in accordance with Article 10.  Supreme Court, after a subsequent bench trial on the issue of a disposition, found that civil commitment, as opposed to a community based program, was appropriate.

The Court of Appeals following an affirmance by the Appellate Division reversed.  This is where this post becomes relevant.

The Assistant Attorney General did the following on cross-examination:

1) The State’s attorney attacked the expert’s credibility on the basis of his religious beliefs and affiliation, among other things. For example, during cross-examination, he asked the expert, a psychologist, about his religion of Yoism, which the expert described as similar to Unitarianism; this religion’s basic tenets; and whether Yoism was based upon a historical text. Andrew O.’s counsel objected repeatedly and fruitlessly to this line of questioning [which was futal]”

2)Closing statement: “He [The Assistant AG] also warned the jurors that there “was a child out there” who would be affected by their decision, and asked rhetorically if they “want[ed] another victim to have to come in [in order] to find mental abnormality.”

Reversed.  You cannot call people monsters (or insinuate it).  Just leave the substance of the statement in closing vague and let the jury come to the natural conclusion on their own.  There is a good chance they will.  Also, you cannot go attacking experts on the religion they practice.  To be honest, I still cannot believe attorneys (whether civil or criminal) are still engaging in this practice.  It is every disheartening.

Experts and medical literature – short, sweet and to the point

Rowe v Fisher, 2011 NY Slip Op 01721 (1st Dept. 2011)

“The motion court properly precluded plaintiffs’ expert testimony on chelation because the expert’s theories were contrary to the medical literature on the subject and therefore “unreliable” (Parker v Mobile Oil Corp., 7 NY3d 434, 447 [2006]).”

“Plaintiffs’ [*2]position was based solely on their expert’s own unsupported beliefs (see Marso v Novak, 42 AD3d 377, 378-379 [2007], lv denied 12 NY3d 704 [2009]).”

In my mind, this is a powerful case for so many reasons.

Consolidated Mess

Consolidated Imaging P.C. (Rafailova) v Travelers Indem. Co., 2011 NY Slip Op 50159(U)(Civ Ct. Richmond Co. 2011)

I did not miss this case.  I just avoid discussing Civil Court cases that will be overturned as a matter of course and are bereft of accurate reasoning.  There is a lot to say about this case, and I will keep it brief.

First, the “hearsay” objections are without merit for the reasons that we have seen over the last few years.  My previous posts address this topic ad nauseum.

Second, the”generally accepted language” that was quoted in the opinion, which cited to various lower court cases was probably rejected in Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 52267(U)(App. Term 1st Dept. 2010), when the Appellate Term spelled out why the peer review prima facie proved the lack of medical necessity for the durable medical equipment in that matter.

Third, you cannot say that the difference in specialties goes to the weight of the evidence, yet cite to Judge Hirsch’s opinion which holds that this particular defect in the peer review or trial testimony is per se fatal.

Fourth, the insurance law and the regulations do not allow pre-certification.  That is the basis for the Magnacare storm that has been brewing over the last year against Geico, and which may spell a 7-8 figure disaster for that carrier.

Fifth, the nature of all insurance contracts, whether they be auto or commercial, involve some degree of Monday Morning Quarterbacking.  This is why 3 levels of appeals are allowed in the commercial health insurance paradigm, followed by an Article 78 if a party is unhappy.

This was just a ridiculous decision.  However, after receiving an affirmation in opposition  from an attorney who attached this case with the Judge’s face on it, I felt the need to respond.

Lastly, I am not offering an opinion as to the persuasiveness or lack thereof regarding the doctor’s testimony.  The trial testimony may very well have been conclusory or self contradictory.  It could have been consistent and logical.  That does not concern me.  But, the methodology that was utilized to reach the ultimate conclusion was improper.  I find this troubling.

4518(a) – interesting observations

Rodriguez v New York City Tr. Auth., 2011 NY Slip Op 01258 (2d Dept. 2011)

“We agree with the defendant that the Supreme Court erred in precluding it from introducing into evidence two accident reports. The accident reports were made in the regular course of business and were admissible under CPLR 4518(a).  A business record is admissible even though the person who prepared it is available to testify to the acts or transactions recorded.”

Appellate Term, Second Department – first application of Matter of Carothers

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 2011 NY Slip Op 21039 (App. Term 2d Dept. 2011)

When Carothers was decided, people on here commented that a third-party biller would now be able to establish a prima facie case provided certain prerequisites were met.  This was based upon the following language in Carothers:

“Further, although a proper foundation can be established by a recipient of records who does not have personal knowledge of the maker’s business practices and procedures, there must still be a showing that the recipient either incorporated the records into its own records or relied upon the records in its day-to-day operations”.  Andrew Carothers, M.D., P.C. v. Geico Indem. Co., 79 A.D.3d 864, 865 (2d Dept. 2010).

Admittedly, I tended to agree with the comments.  But like many, I failed to look  at the cases Carothers cited, particularly Plymouth Rock Fuel Corp.  And, I of all people should have known better because when I wrote the losing appellant’s brief in Pine Hollow v. Progressive many years ago, my main argument was consistent with Plymouth Rock: the owner or other custodian employed at the medical facility can incorporate the records of the biller, not the other way around.  I lost at that time, and perhaps that is why I acquiesced to the comments that were posted here.

In any event, the Etienne case proves that I was actually correct 7 years ago.  Perhaps now, I can sleep better at night.  The pertinent quote of Etienne is as follows:

“In each of those cases, an entity sought to admit a third party’s records into evidence, pursuant to the business records exception to the hearsay rule, through the testimony of the entity’s own employee. In the case at bar, however, it was plaintiff that sought to admit its own claim forms, pursuant to the business records exception to the hearsay rule, through the testimony of an employee of its third-party biller. Further, it appears that, in DiSalvo and Plymouth Rock Fuel Corp., the third party had a business duty to report accurate information to the entity seeking to use those records. In this case, although plaintiff’s biller asserted that plaintiff had a contractual duty to provide accurate information to its billing company, plaintiff did not submit any evidence of such a duty”.

Aside from making it almost impossible for medical practices that are not in business anymore to satisfy a prima facie case, there was something really interesting in the opinion that I have to put in here:

“Finally, the fact that the claim forms are prescribed by regulation does not render them inherently [*4]trustworthy or reliable. As recognized by the Court of Appeals, incidents of no-fault fraud are prevalent in New York, including instances where corrupt medical clinics “generate stacks of medical bills for each passenger, detailing treatments and tests that were unnecessary or never performed” (see Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854 [2003]).”

This should be contrasted to what the Appellate Term, First Department said on the exact issue, while also construing Matter of Medical Socy. of State of NY v Serio:

“Our conclusion that a plaintiff provider can use admissions obtained through a notice to admit to establish its entitlement to recover overdue assigned first-party no-fault benefits is consonant with the purposes underlying the No-Fault Law, which “were to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003])”

Really interesting stuff.

4518(a) again…and kicking out the witness

Yellow Book of N.Y., L.P. v Cataldo, 2011 NY Slip Op 00678 (2d Dept. 2011):

  • Affiant could work for successor entity and lay a proper business record foundation for the documents.

“Additionally, Cataldo contends that the plaintiff’s documents should not have been admitted into evidence pursuant to the business records exception to the hearsay rule because the plaintiff’s witness was employed by the plaintiff’s successor-in-interest and because she lacked personal knowledge of the information contained in the documents. As the witness at issue was fully familiar with the plaintiff’s record-keeping procedures and practices, this contention is without merit (see CPLR 4518[a])”

  • A representative to a party may not be kicked out of the courtroom –

“Cataldo’s contention that the Supreme Court erred in denying his request to exclude a witness from the courtroom is without merit. The record supports the Supreme Court’s determination that the witness at issue was employed by the plaintiff’s successor-in-interest and was, therefore, a party representative. As such, and in the absence of extenuating circumstances, the witness was entitled to remain in the courtroom throughout the trial (see Auger v State of New York, 263 AD2d 929, 932; Liquori v Barrow, 160 AD2d 843, 844; Carlisle v County of Nassau, 64 AD2d 15, 18). Further, Cataldo failed to establish that he suffered any prejudice due to the continued presence of the witness (see People v Scheck, 24 AD3d 574).”

– Thanks to DG for picking up on the “kicking out the witness” portion of the opinion.

Another Article 10 action brings forth an interesting evidentiary development

Matter of State of New York v Motzer, 2010 NY Slip Op 09688 (4th Dept. 2010)

“Respondent contends that the court erred in allowing petitioner’s expert psychologist to offer an opinion because that opinion was based in part on interviews with collateral sources who did not testify at trial, i.e., respondent’s treatment providers at the psychiatric hospital. We reject that contention. The professional reliability exception to the hearsay rule “enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” (Hinlicky v Dreyfuss, 6 NY3d 636, 648; see Hambsch v New York City Tr. Auth., 63 NY2d 723, 725-726; Matter of Murphy v Woods, 63 AD3d 1526). Here, the expert testified that the statements of a respondent’s treatment providers are commonly relied upon by the profession when conducting a psychological examination to determine whether a respondent is a dangerous sex offender requiring confinement (see generally People v Goldstein, 6 NY3d 119, 124-125, cert denied 547 US 1159).

We reject respondent’s further contention that the court erred in allowing petitioner’s expert psychologist to give hearsay testimony regarding her conversations with respondent’s treatment providers. ” [H]earsay testimony given by [an] expert[] is admissible for the limited purpose of informing the jury of the basis of the expert[‘s] opinion[] and not for the truth of the matters related’ ” (Matter of State of New York v Wilkes [appeal No. 2], 77 AD3d 1451, 1453). The expert gave limited hearsay testimony on direct examination with respect to a conversation she had with one of respondent’s treatment providers, and she testified that she relied on the hearsay information to form her opinion on the case. We thus conclude that the limited amount of hearsay information was “properly admitted after the court determined that its purpose was to explain the basis for the expert[‘s] opinion[], not to establish the truth of the hearsay material, and that any prejudice to respondent from that testimony was outweighed by its probative value in assisting the [court] in understanding the basis for [the] expert’s opinion” (id. at 1453).

I guess Judge Sweeney was correct in Primary Psychiatric Health, P.C. v. State Farm Mut. Auto Ins. Co., 15 Misc.3d 1111(A)(Civ. Ct. Kings Co. 2007).

Very interesting discussion involving a nurse’s standard of care in the medical malpractice realm

Applewhite v Accuhealth, Inc., 2010 NY Slip Op 09570 (1st Dept. 2010)

In a decision that produced a three judge majority and a two judge concurrence with a partial dissent, the Appellate Division, First Department discussed the issue of nursing malpractice in relation to the failure to provide epinephrine (in an epi-pen) to counter analphylactic shock.  While I find this a facinating case, you may not and that is alright.  There is an interesting rule of law that is dispositive of this case that is highly relevant in light of, all things, the paradigm involving whether a PMR or neurologist can comment on the necessity of services that a chiropractor performs or refers.

Factually and as limited for purposes of this discussion, the issue involved the standard of care a nurse who specilized in home infusion therapy should exercise.  Defendant’s expert, while a nurse, lacked this background.  This was fatal to Defendant’s prima facie entitlement to summary judgment.  To quote the majority:

“The statements in Heuser’s (who was the defendant’s expert) affidavit regarding Russo’s duty to secure epinephrine failed to shift the burden on that issue for the additional reason that, as the motion court correctly determined, Heuser was not qualified to render such an opinion…Here, the motion court was correct as Heuser did not have any experience in home infusion. There is no evidence that her general nursing experience afforded her any insight into those skills unique to home infusion nurses. That absence is critical here. Because none of the experience Heuser did purport to have was necessarily transferable to the issue of whether Russo should have carried out the infusion on plaintiff without having epinephrine available, and because she failed to lay any other “foundation . . . tending to support the reliability of” her opinion, the motion court properly rejected Heuser’s affidavit when considering the epinephrine issue (see Behar v Coren, 21 AD3d 1045, 1047 [2005], lv denied 6 NY3d 705 [2006]).”

The concurrence would have denied the motion based upon Plaintiff’s tendering sufficient evidence to defeat Defendant’s prima facie entitlement to summary judgment.  Justice Saxe observed the following:

“While experts must possess the requisite skill, training, knowledge or experience to establish that their opinion is reliable, they do not have to be specialists in the same field as that of the defendant, as long as they lay the foundation to support the reliability of their opinions (Behar v Coren, 21 AD3d 1045, 1046-1047 [2005], lv denied 6 NY3d 705 [2006]). It is not required in New York that an expert witness possess a particular certification in order to be qualified as an expert as long as the expert had the requisite degree of knowledge to testify as to the tasks at issue (see Bodensiek v Schwartz, 292 AD2d 411 [2002]). Under New York law, the practice of all nurses, other than nurse practitioners, is governed by the same statute (Education Law § 6902). As Nurse Russo pointed out at her deposition, registered nurses working in hospitals regularly encounter anaphylactic reactions to emergency treatment; anaphylaxis is not a complication that occurs uniquely in the home infusion setting. Therefore, any registered nurse [*15]with hospital experience would be qualified to testify on the issue of the standard of care relevant to an anaphylactic patient. Anne Heuser was a registered nurse with 19 years of experience, who had worked in emergency rooms and trauma centers, including hospitals in the New York area. This adequately laid the foundation for her opinion, and her affidavit should not have been rejected as a matter of law. While the question of whether an expert witness is qualified generally rests in the sound discretion of the trial court (Matter of Pringle v Pringle, 296 AD2d 828, 829 [2002]), in the context of this motion, Nurse Heuser’s affidavit was competent to establish that Nurse Russo’s conduct comported with the applicable standard of care.”

Take this case for what its worth.

It was a good run at the cards

Elmont Open Mri & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 52222(U)(App. Term 2d Dept. 2010)

I guess the luck of certain Nassau plaintiff firms (9th and 10th judicial districts) who received favorable decisions on medical necessity motions, while their counterparts in the other Second Department lower courts (2nd, 11th & 13th judicial districts) did not fare as well, were handed a glaring set back in the latest round of decisions.

To put it bluntly, the Appellate Term has held that these firms’ papers and arguments in attempting to defeat a marginally supported lack of medical necessity motion will always lose.  While the Nassau judges, in several well though-out published decisions found otherwise, the Appellate Term for the 9th and 10th Judicial Districts has now conformed their holdings on this issue to that of their New York City counterparts.

While I have reservations about the Appellate Term’s holding that the failure to annex documents that a peer review doctor relied upon is proper, what is interesting is that this court adopted the Urban Radiology holding verbatim.  As it related to the “non-hearsay rule” of plaintiff’s documents, this decision was correct in light of the Fourth Departments holding in Matter of State of New York v Wilkes, 2010 NY Slip Op 07006 (4th Dept 2010).  As those who read this blog regularly will know, I discussed the Wilkes case and predicted that it would solidify the non-hearsay rule enunciated in the Urban court and now followed by the Elmont court.  I have always said to watch the Fourth Department when they dump about 100 cases online once each month.

Here is my favorite line from this Court: “defendant was not required to consider plaintiff’s bills in a vacuum and to ignore medical records which defendant had received either from plaintiff’s assignor or from another provider who had submitted such records on behalf of the assignor”

A computer database is a business record

Short and sweet from the Appellate Division.

J.D.M. Imports Co., Inc. v Hartstein, 2010 NY Slip Op 09186 (1st Dept. 2010)

“The court correctly found that plaintiff’s computer database was a business record (see Ed Guth Realty v Gingold, 34 NY2d 440, 451 [1974]), and then properly admitted a print-out from the database (see People v Weinberg, 183 AD2d 932, 933 [1992], lv denied 80 NY2d 977 [1992]; see also Guth, 34 NY2d at 452).”