CPLR 3101(d)(1)

Yampolskiy v Baron, 2017 NY Slip Op 03556 (2d Dept. 2007)

“”[A] party’s failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party’s experts in the context of a timely motion for summary judgment” (Rivers v Birnbaum, 102 AD3d 26, 31). Under the circumstances of this case, the Supreme Court properly denied the plaintiff’s cross motion to preclude the expert materials submitted by the defendants in support of their motion for summary judgment, as there was no evidence that the failure to disclose the experts was intentional or willful, and there was no showing of prejudice to the plaintiff (see Begley v City of New York, 111 AD3d 5, 36; Salcedo v Weng Qu Ju, 106 AD3d 977, 978; Hayden v Gordon, 91 AD3d 819, 820).”

Competent opinion of a specialist

Bartolacci-Meir v Sassoon, 2017 NY Slip Op 03040 (1st Dept. 2017)

“The nonconclusory opinion of a qualified expert based on competnt evidence that a defendant departed from accepted medical practice and that that departure was a proximate cause of plaintiff’s injury precludes a grant of summary judgment in favor of the defendants (see Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]; Cregan v Sachs, 65 AD3d 101, 108 [1st Dept 2009]). However, the affidavit must be by a qualified expert who “profess[es] personal knowledge of the standard of care in the field of [] medicine [at issue], whether acquired through his practice or studies or in some other way” (Nguyen v Dorce, 125 AD3d 571, 572 [1st Dept 2015] [pathologist not qualified to render opinion as to whether defendant deviated from the standard of care in the field of emergency medicine]; see also Atkins v Beth Abraham Health Servs., 133 AD3d 491 [1st Dept 2015] [osteopath not qualified to render opinion on treatment of a geriatric patient with diabetes and other conditions]; Udoye v Westchester-Bronx OB/GYN, P.C., 126 AD3d 653 [1st Dept 2015] [pathologist not qualified to render an opinion as to the standard of care in obstetrics or cardiology]; Mustello v Berg, 44 AD3d 1018 [2d Dept 2007] [general surgeon not qualified to render opinion as to gastroenterological treatment], lv denied 10 NY3d 711 [2008]).

Here, there is no indication that Dr. Befeler possessed the requisite background and knowledge to furnish a reliable opinion concerning the practice of gastroenterology (see Browder v New York City Health & Hosps. Corp., 37 AD3d 375 [1st Dept 2007]). While a gastroenterologist may well be qualified to render an opinion on a surgical procedure involving the gastrointestinal system, it cannot be said that a general surgeon is qualified to opine on any [*4]specialty simply because the specialist may eventually refer the patient for surgery. Indeed, Dr. Befeler averred only that his conclusion that both doctors “were negligent in failing to follow standard and accepted medical procedures” was based upon his “review of the above records, [his] education, years of training, and [his] forty year experience in the field of General Surgery.” Nowhere did the doctor set forth any experience in gastroenterology or detail the standard of care for that specialty. Moreover, the expert did not provide any detail as to what Dr. Scherl should have done other than refer plaintiff to a surgeon, which she did. While he referred to “further diagnostic testing,” he did not say what those tests would be.

Although plaintiffs correctly argue that a doctor may have the requisite knowledge to opine on a specialty outside his particular field (Joswick v Lenox Hill Hosp., 161 AD2d 352, 355 [1st Dept 1990]), here, their expert failed to say that he possessed such knowledge and to explain how he came to it. Further, he failed to set forth the standard of care allegedly violated. Thus, plaintiffs did not adduce the opinion of a qualified expert so as to rebut Dr. Scherl’s showing of her entitlement to summary judgment.”

The expert opinion

DiLorenzo v Zaso, 2017 NY Slip Op 02402 (2d Dept. 2017)

“[A] medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field” (Behar v Cohen, 21 AD3d 1045, 1046-1047 [internal quotation marks omitted]). However, the witness must “be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” (id. at 1047 [internal quotation marks omitted]). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (id.). Where no such foundation is laid, the expert’s opinion is “of no probative value” (Feuer v Ng, 136 AD3d at 707; see Tsimbler v Fell, 123 AD3d 1009, 1009-1010; Shashi v South Nassau Communities Hosp., 104 AD3d at 839; Geffner v North Shore Univ. Hosp., 57 AD3d at 842; Mustello v Berg, 44 AD3d 1018, 1018-1019).”

Qualification of an expert

Steinberg v Lenox Hill Hosp., 2017 NY Slip Op 02383 (1st Dept. 2017)

Yes, the general rule is that a physician can offer an expert opinion about a medical issue and that will be sufficient evidence to make a prima facie showing or to defeat a prima faice showing.  There is a tension on this issue where I am seeing that the exception to the rule is more true than the rule itself.

“Plaintiffs’ expert was also not qualified to offer an opinion as to causation. He specializes in cardiovascular surgery, not neurology or ophthalmology. Moreover, he failed to “profess the requisite personal knowledge” necessary to make a determination on the issue of whether the perforation was responsible for plaintiff’s visual impairment”

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.