Triable issues of fact on a medical malpractice case?

Severino v Weller, 2017 NY Slip Op 01325 (1st Dept. 2017)

This is from the dissent which would have granted summary judgment to the doctor and the hospital.  The statement of law is interesting and dare I say useful when looking at healthcare professionals’ affirmation:

“Generally, “the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor [*5]of the defendants” (Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002] [internal quotation marks omitted]). However, a plaintiff’s expert’s opinion “must demonstrate the requisite nexus between the malpractice allegedly committed’ and the harm suffered” (Dallas—Stephenson v Waisman, 39 AD3d 303, 307 [1st Dept 2007]). If “the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation … the opinion should be given no probative force and is insufficient to withstand summary judgment” (Diaz, 99 NY2d at 544; Giampa v Marvin L. Shelton, M.D., P.C., 67 AD3d 439 [1st Dept 2009]). Further, the plaintiff’s expert must address the specific assertions of the defendant’s expert with respect to negligence and causation (see Foster-Sturrup, 95 AD3d at 728-729). Here, the opinions of plaintiffs’ experts, submitted in opposition to defendants’ prima facie showing that the injury sustained by Mr. Severino was the result of an unpredictable and unpreventable respiratory arrest, were based on supposition and hindsight, and were unsupported by the proof, and were therefore insufficient to raise a material issue of fact (see Manuel H. v Landsberger, 138 AD3d 490 [1st Dept 2016], lv denied 28 NY3d 909 [2016]; Foster-Sturrup, 95 AD3d at 728; Fernandez v Moskowitz, 85 AD3d 566, 568 [1st Dept 2011]; Brown v Bauman, 42 AD3d 390, 392 [1st Dept 2007]).”


Wrong records? Inadmissible opinion

Mezzone v Goetz, 2016 NY Slip Op 08474 (1st Dept. 2016)

“However, plaintiff testified that his left foot wound did have pus emanating from the wound site, plaintiff’s expert opined that Dr. Ogbonna had switched his notes for the left and right foot, and the expert for St. Barnabas conceded that the notation was likely an error. Since defendants’ experts relied upon incorrect records, their opinions are insufficient to set forth entitlement to judgment as a matter of law (see Fleming v Pedinol Pharmacal, Inc., 70 AD3d 422 [1st Dept 2010]).”

This case is terrific.  It stands for the plain proposition: Wrong records?  Opinion is out the door.

The broad scope of the cited to case of Fleming is even better: failure to address the pertinent records renders the opinion speculative.

A discussion on CPLR 3101(d)

Tate-Mitros v MTA N.Y. City Tr., 2016 NY Slip Op 07394 (1st Dept. 2016)

There seem to be a few attorneys who do not understand the minimal extent of disclosure and the timing issues behind CPLR 3101(d).  This case is a prototypical example of when the parties convince a judge that 3101(d) is more demanding than that it is.  The result of this argument seems to usually result in a new trial.

(1) “We find that Dr. Kurtz’s CPLR 3101(d)(1) disclosure notice was legally sufficient; it provided plaintiff with notice that the doctor would question whether a bus would have caused the injuries sustained by plaintiff. It is improper for a party to request the facts and opinions upon which another party’s expert is expected to testify (see Krygier v Airweld, Inc., 176 AD2d 700, 701 [2d Dept 1991]; see also Weininger v Hagedorn & Co., 203 AD2d 208, 209 [1st Dept 1994]; Conway v Elite Towing & Flatbedding Corp., 135 AD3d 893, 894 [2d Dept 2016] [“no requirement that (an) expert set forth the specific facts and opinions upon which he or she is expected to testify, . . . only the substance”]).”

(2) “However, a party should not be precluded from presenting expert testimony merely because of noncompliance with CPLR 3101(d)(1)(i), unless there is evidence of a willful failure to disclose and a showing of prejudice by the opposing party”

3101(d) from the Court of Appeals

Rivera v Montefiore Med. Ctr., 2016 NY Slip Op 06854 (2016)

Perhaps one of the most misunderstood and contrarily construed provisions of the CPLR is expert witness disclosure.  The problem emanates from a reality that New York disallows expert witness depositions, unlike most states and the FRCP.  The corrolary to the problem is that timing and substance issues of the disclosure become of paramount concern.

As a practitioner, there is nothing more obnoxious than an adversary who had at least 7-30 days to review the disclosure to state after a case is sent out for jury selection or a bench trial to object to the sufficiency of the disclosure.  The time to object is prior to being sent out, and the proper mechanism is really through motion or order to show cause.  This case solidifies proper procedure versus shot-gun procedure.

Of course, a party that gives a misleading disclosure will still pay the Piper his due.

(1) “CPLR 3101 (d) (1) (i) requires each party to “identify each person whom the party expects to call as an expert witness at trial and [to] disclose in reasonable detail the subject matter on which each expert is expected to testify, the qualifications for each expert witness and a summary of the grounds for each expert’s opinion.” It was within the trial court’s discretion to deny plaintiff’s motion to preclude (see People v Carroll, 95 NY2d 375, 385 [2000]). Trial courts possess broad discretion in their supervision of expert disclosure under CPLR 3101 (d) (1) (see Bernardis v Town of Islip, 95 AD3d 1050, 1050 [2d Dept 2012]). “A determination regarding whether to preclude a party from introducing the testimony of an expert witness at trial based on the party’s failure to comply with 3101 (d) (1) (i) is left to the sound discretion of the court” (McGlauflin v Wadhwa, 265 AD2d 534, 534 [2d Dept 1999]; see also Deandino v New York City Tr. Auth., 105 AD3d 801, 803 [2d Dept 2013]; but see Saldivar v I.J. White Corp., 46 AD3d 660, 661 [2d Dept 2007]).”

(2) Plaintiff made her motion mid-trial immediately prior to the expert’s testimony. Plaintiff argues that at the time of the expert exchange, she had no reason to object to the disclosure statement because the statement gave no indication that defendant would challenge plaintiff’s theory of decedent’s cause of death. Assuming defendant’s disclosure was deficient, such deficiency was readily apparent; the disclosure identified “causation” as a subject matter but did not provide any indication of a theory or basis for the expert’s opinion. This is not analogous to a situation in which a party’s disclosure was misleading or the trial testimony was inconsistent with the disclosure. Rather, the issue here was insufficiency.

A Frye hearing is required where two sides have opposing literature on a contested novel service

Sepulveda v Dayal, 2016 NY Slip Op 06949 (2016)

(1) To paraphrase, there were many experts who offered differing testimony “whether the infant plaintiff’s neuroblastoma could have been discovered before birth”

(2) “Defendant’s experts established a prima facie case that the ultrasound studies were properly interpreted and that none of defendant’s acts or omissions caused the infant plaintiff’s alleged injuries. In light of plaintiffs’ expert opinions to the contrary, however, we cannot hold on the record presented to us that the opinions of plaintiffs’ experts are not generally accepted within the medical and scientific communities. Accordingly, the motion court properly set the matter down for a Frye hearing”

(3) “As noted above, plaintiffs’ experts based their opinions partially on peer-reviewed, published articles stating that routine prenatal sonography had detected fetal neuroblastomas. Whether the information conveyed in these articles has gained general acceptance in the medical community, and thus provides support for the opinions of plaintiffs’ experts, is precisely the topic of a Frye hearing.”

This one  is quite interesting for a variety of reasons.  Fist, Plaintiff’s have provided a new or novel theory on a medical proposition of fact, that is supported with peer reviewed literature.  Second, Defendants have provided evidence that the theory is not reliable.  The Court has set the matter down for a Frye hearing.

In the world we practice in, I am thinking of platelet theory and laser acupuncture?

MUA with Straniere: Part 2

New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co., 2016 NY Slip Op 51125(U)(App. Term 2d Dept. 2016)

(1) “The sole witness to testify at trial was defendant’s witness, Dr. Paul Priolo, a licensed chiropractor, certified in MUA. Plaintiff stipulated to Dr. Priolo’s “credentials [and] expertise.” Dr. Priolo testified that he had concluded, based upon his review of Dr. Snitkoff’s peer review report and the documentation upon which the peer review report relied, that there was a lack of medical necessity for the MUA procedure.”

(2) The issue in this case is not whether chiropractors are permitted to perform MUA, but rather whether defendant, through the testimony of its expert witness, satisfied its burden of establishing a lack of medical necessity and, if it did so, whether plaintiff proved, by a preponderance of the evidence, that the services rendered were medically necessary (see Park Slope Med. & Surgical Supply v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

(3) Plaintiff stipulated to Dr. Priolo’s expertise, and there is no indication in the record that Dr. Priolo was not competent to assert his opinion as to the lack of medical necessity of the procedure performed (see Channel Chiropractic, P.C. v Country-Wide Ins. Co., 38 AD3d 294 [2007]; see also Patil v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]) and, by extension, the facility fee which was sought in the claim in question.

(4) Dr. Priolo’s testimony, which the court found credible, demonstrated a factual basis and medical rationale for his determination that there was no medical necessity for the services at issue (see Alev Med. Supply, Inc. v Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As plaintiff called no witnesses to rebut Dr. Priolo’s testimony (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), we disagree with the Civil Court’s ultimate determination in favor of plaintiff and find that the Civil Court should have dismissed the complaint.

My last post discussed the observations involving the negative IME.  This is interesting on the peer review side since the Court cited to Channel Chiropractic and Patil.  Those are the nurse peer reviews that with a proper foundation can be deemed sufficient to lay a foundation for determining medical appropriateness of services.  This means a peer reviewer who is not certified may not be able to give an opinion on lack of medical necessity of MUA services.  This would, of course, run counter to that Allstate case that came out of the Appellate Term, First Department stating that it goes to the weight of the testimony.  Here, lack of training goes straight to admissibility.



The professional reliability exclusion

People v Howard, 2015 NY Slip Op 08870 (3d Dept. 2015)

Sometimes, you cannot obtain all of the links of the hearsay chain and have to rely on basis hearsay.  The big question mark to me has always been: how do you lay the foundation to get to the professional reliability exception?  This is an example.

“Contrary to defendant’s arguments, County Court did not improperly admit hearsay testimony by permitting an insurance investigator to testify about interviews he conducted while investigating the fire. The investigator testified that, following his investigation, he concluded that the fire was caused by human action and that this opinion was based, in part, upon his communications with an independent electrical consultant who assisted him in the investigation, and also with one of the wife’s children. Although neither of these individuals testified at trial, the professional reliability exception to the hearsay rule permits an expert witness to rely upon out-of-court information that would otherwise be inadmissible “if it is of a kind accepted in the profession as reliable in forming a professional opinion” (People v Goldstein, 6 NY3d 119, 124-125 [2005], cert denied 547 US 1159 [2006] [internal quotation marks and citations omitted]; accord Matter of State of New York v Floyd Y., 22 NY3d 95, 107 [2013]). “[A] prerequisite to admission of such out-of-court material is a showing by the proponent that it is reliable as a basis for expert opinion in the given field” (People v Wlasiuk, 32 AD3d 674, 680-681 [2006], lv dismissed 7 NY3d 871 [2006]). Here, the People laid the necessary foundation for allowing introduction of the information obtained from the consultant through the testimony of the investigator, who described the consultant’s qualifications as a retired master electrician who had assisted the investigator in many prior fire investigations, had likewise assisted other companies and investigators and had previously been qualified as an expert in state and federal court.”

3101(d) preclusion

Coleman v New York City Tr. Auth., 2015 NY Slip Op 08906 (1st Dept. 2015)

The general rule from the Second Department is a violation of 3101(d) will result in an adjournment of the trial.  The First Department goes either way.  The dispositive factor here seems to be surprise.  The biomecancial engineer came from nowhere.

“The trial court providently exercised its discretion in precluding testimony from defendants’ biomechanical and accident reconstruction experts because defendants served their disclosures only days before the scheduled trial date. We see no reason to disturb the trial court’s exercise of discretion in precluding this testimony (see LaFurge v Cohen, 61 AD3d 426, 426 [1st Dept 2009], lv denied 13 NY3d 701 [2009]), whether applying a “good cause” standard (Peguero v 601 Realty Corp., 58 AD3d 556, 564 [1st Dept 2009]) or a “willful or prejudicial” standard (see Banks v City of New York, 92 AD3d 591, 591 [1st Dept 2012]). We also see no reason to disturb the trial court’s exercise of discretion in precluding testimony regarding a seatbelt defense (cf. Banks, 92 AD3d at 591 [even though economist’s report was exchanged on eve of trial, this Court refused to disturb Supreme Court’s exercise of discretion permitting economist’s testimony regarding lost wages, which was pleaded in the bill of particulars]).”

Expert witnesses again

Lavi v NYU Hosps. Ctr., 2015 NY Slip Op 08715 (2d Dept. 2015)

“In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs’ expert, who specialized in pathology, did not mention in his affidavit whether he had any specific training or expertise in endocrinology or particularized knowledge with regard to testosterone replacement therapy. Moreover, he did not indicate that he had familiarized himself with the relevant literature or otherwise set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice. ” While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable'”

Thus, where a physician provides an opinion beyond his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered

This is an area of law with so much variability.  On one hand, we all agree that a physician can testify outside his specialization.  On the other hand, the law limits a physician in offering testimony outside his or her specialty when the issue involves an area of  specialized medicine.  I think there needs to be a Court of Appeals case that sets forth a bright line rule, because I am losing track of what the proper statement of law is.

Familiar theme on experts and 2106

Lopez v Gramuglia, 2015 NY Slip Op 08068 (1st Dept. 2015)

Familiar lesson here.  An expert can generally opine about all areas of medicine.  The other lesson here is that a 2106 objection needs to be specific.

“At the outset, defendant’s expert affirmation was properly considered. Dr. Robbins, an orthopedist, was qualified to render an opinion as to the standard of care in podiatry, since a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field (see Fuller v Preis, 35 NY2d 425, 431-433 [1974]; and see Limmer v Rosenfeld, 92 AD3d 609 [1st Dept 2012]). Although, Dr. Robbins’ affirmation, which recited his credentials as including, inter alia, board certification as an orthopedic surgeon, and graduation from Columbia University College of Physicians and Surgeons, with the completion of a residency in New York City, did not specifically state that he was a “duly licensed physician,” or that he was “duly licensed in the State of New York” (see e.g. CPLR 2106), plaintiff failed to raise this argument before the motion court and, as such, it is unpreserved for appellate review (see Shinn v Catanzaro, 1 AD3d 195, 197-198 [1st Dept 2003]; see also Scudera v Mahbubur, 299 AD2d 535 [2d Dept 2002]).”