CPLR 3101(d) not violated

Matter of Matter of State of New York v Dennis K., 2014 NY Slip Op 05884 (2d Dept. 2014

“The Supreme Court did not err in denying the appellant’s application to preclude certain expert testimony at the dispositional hearing, based on the State’s failure to comply with CPLR 3101(d), as no wilfulness or significant prejudice was demonstrated (see Ocampo v Pagan, 68 AD3d 1077, 1078; Shopsin v Siben & Siben, 289 AD2d 220, 221).”

A wholesale violation of the statute does not require preclusion.

Jules said he is not bound by the Appellate Term’s holdings

Quality Health Prods., Inc. v Travelers Indem. Co., 2014 NY Slip Op 51231(U)(App. Term 2d Dept. 2014)

“At the trial, the judicial hearing officer refused to allow defendant’s expert witnesses to testify as to their opinions of the medical necessity of the supplies at issue on the ground that the underlying medical records of plaintiff’s assignors that the witnesses had reviewed were hearsay, explicitly stating that he did not “follow” Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).”

“As this court has previously held, defendant’s witnesses should have been permitted to testify as to their opinions regarding the medical necessity of the supplies at issue, and it was error to preclude their testimony on hearsay grounds”

“We note that, contrary to the belief of the judicial hearing officer in this case, the Civil [*2]Court is bound by the decisions of this court (see 28 NY Jur 2d, Courts and Judges § 220).”

*I recall a “trial” with Judge Ingrid Joseph where this occurred because the carrier presented a substitute peer review.  Plaintiff made a frivolous peer hearsay objection, which was sustained.  If I were a judge and I really believed that peer hearsay and substitute peer testimony was not admissible, I would allow it, make factual findings adverse to the proponent of the evidence and render a judgment that would be less likely to be reversed on appeal.  See e.g. PSW Chiropractic v. Maryland Insruance Co.   In all seriousness, it is embarrassing when you as a judge “westlaw yourself” and you get reversed on this basis.

Now, will this prevent a judge from being elevated to 360 Adams Street (this is a Brooklyn phenomenon by the way)?  Probably not.  But from an integrity standpoint, it is problematic.

The absence of an expert is fatal to prove causation

Donoso v Motor Veh. Acc. Indem. Corp., 2014 NY Slip Op 04071 (1st Dept 2014)

Plaintiff claims that she suffered permanent consequential and significant limitations of use of her lumbar spine as a result of an accident involving a motor vehicle (see Insurance Law § 5102[d]). At trial, she testified that she was knocked over by a car and thereafter suffered back pain and injuries for which she received physical therapy and epidural injections, and that she underwent surgery four years later. Ambulance and emergency room records admitted into evidence show that the then 65-year-old plaintiff complained of back pain following the accident, and medical records of the treatment about which plaintiff testified show, inter alia, that the surgical procedure was a laminectomy to address spinal stenosis. Plaintiff did not call any treating physician or medical expert to testify.

Defendant moved for a directed verdict at the close of plaintiff’s evidence, arguing that plaintiff could not prove causation without a doctor’s testimony (see CPLR 4401). Contrary to plaintiff’s contention, since defendant’s argument constituted a challenge to the sufficiency of the evidence, and indeed plaintiff opposed defendant’s motion on the ground that her medical records were sufficient, the issue whether plaintiff established prima facie that she suffered a serious injury causally related to the motor vehicle accident is preserved for review (see Geraci v Probst, 15 NY3d 336, 342 [2010]).

Plaintiff presented no evidence of a causal connection between the motor vehicle accident and her lumbar condition. The medical records do not contain an opinion given by a physician that there was a causal connection between the accident and plaintiff’s disc herniation or the spinal stenosis for which she underwent surgery four years later. Indeed, the impression of one of plaintiff’s treating physicians, according to his medical records, was “[d]egenerative disc disease of the lumbar spine.” However, if the records had contained an opinion, the trial court could not have considered them, because the opining physician was not available for cross-examination (see Rickert v Diaz, 112 AD3d 451 [1st Dept 2013] Daniels v Simon, 99 AD3d [*2]658, 660 [2d Dept 2012]). Thus, defendant was correct that plaintiff could not prove causation without a doctor’s testimony, and its motion should have been granted because “there [was] no rational process by which the fact trier could base a finding in favor of [plaintiff]” (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997] see e.g. Ciocca v Park, 21 AD3d 671 [3d Dept 2005], affd 5 NY3d 835 [2005]).”

Reports and treatments notes are insufficient to prove causation and presumably medical necessity.  Alternatively, if the records contain an opinion, they are inadmissible as they are not subject to cross-examination.  A bit of a tongue twister?

Plaintiff’s medical records are admissible by defendant absent dispute regarding accuracy or veracity

Ward v Lincoln Elec. Co., 2014 NY Slip Op 02668 (1st Dept. 2014)

I think this might be a way around the Appellate Term peer hearsay paradigm without stating that Assignor’s medical records are not considered for a hearsay purpose.   Assignee is stuck with Assignor’s uncertified records unless Assignor disputes their accuracy.  This seems to be a cleaner approach to allow these records into evidence than our current construct.

“Plaintiff’s uncertified medical records may be considered since plaintiff does not dispute their accuracy or veracity  (Carlton v St. Barnabas Hosp., 91 AD3d 561 [1st Dept 2012]; CPLR 4518[c]). He only disputes the inferences to be drawn from the records as to the date on which his condition was sufficiently apparent to start the limitations period running”

Biomechanical Engineer allowed to testify

Vargas v Sabri, 2014 NY Slip Op 01666 (1st Dept. 2014)

In the world of the use of  bio mechanical engineer issues, this case is actually a watershed case.  Here, the Appellate Division essentially called into question the holding of the Appellate Term 7 years ago in Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.,17 Misc.3d 97 (App. Term 1st Dept. 2007)(“[a]ccident reconstruction evidence may often prove useful in explaining how an accident occurred, its probative value on issues related to causation is limited unless amplified by a meaningful medical assessment of the claimed injuries”) through holding that a biomechanical expert need not have medical credentials to offer an opinion, within a reasonable degree of engineering certainty, that that motor vehicle accident did not cause the injuries at bar.

The case held as follows:

“The fact that Dr. McRae lacked medical training did not render him unqualified to render an opinion as an expert that the force of the subject motor vehicle accident could not have caused the injuries allegedly sustained (see e.g. Melo v Morm Mgt. Co., 93 AD3d 499, 499-500 [1st Dept 2012]). McRae’s stated education, background, experience, and areas of specialty, rendered him able him to testify as to the mechanics of injury (see Colarossi v C.R. Bard, Inc., 113 AD3d 407 [1st Dept 2014]).

Plaintiffs’ challenge to Dr. McRae’s qualifications and the fact that his opinion conflicted with that of defendant’s orthopedic expert go to the weight and not the admissibility of his testimony (see Williams v Halpern, 25 AD3d 467, 468 [1st Dept 2006]). Plaintiffs’ challenge to the basis for Dr. McRae’s opinion addressed only portions of the evidence relied upon by him. Furthermore, the record shows that plaintiffs improperly attempted to put defendant to his proof [*2]by asserting, in the moving papers, that “defendant has not shown that the hearsay studies’ Mr. McRae relies upon are reliable,” without identifying any of the studies referred to or explaining the basis for the belief that the studies were not reliable.”

Peer report is sufficient to prima facie prove lack of serious injury (Ins Law Sec. 5102[d])

Fisher v Hill, 2014 NY Slip Op 00830 (4th Dept. 2014)

It is infrequent that I post on the serious injury threshold.  But a Plaintiff on a PI case that I am handling rejected a 3101(d) based upon the fact that our expert will be the classic peer reviewer.  He will look at the EBT testimony, medical records, Bill of Particulars and testify that Plaintiff did not sustain a “serious injury”  since the injuries were not causally related to the loss.

“In support of their motion, defendants submitted medical records and the affirmed report of a neuroradiologist who examined plaintiff’s medical records at defendants’ request.  The neuroradiologist concluded that the objective medical findings related only to a preexisting condition in plaintiff’s spine. “[W]ith persuasive evidence that plaintiff’s alleged pain and injuries were related to a preexisting condition, plaintiff[s] had the burden to come forward with evidence addressing defendant[s’] claimed lack of causation” and, here, plaintiffs failed to meet that burden”

Attorney drafted 3101(d) in malpractice action insufficient to defeat summary judgment

Bacani v Rosenberg, 2014 NY Slip Op 00737 (1st Dept. 2014)

“As this Court previously found, the opinions of plaintiffs’ expert, Dr. Harrigan, failed to raise a triable issue, and plaintiffs’ submission of an attorney-drafted CPLR 3101(d) expert disclosure averring that an expert pathologist would testify concerning causation is not evidentiary proof in admissible form sufficient to defeat the subject motion for summary judgment (see e.g. Velasco v Green-Wood Cemetery, 48 AD3d 271, 272 [1st Dept 2008]).”

It is nice to see the court call out the “attorney drafted” affidavit of merit.  You know it when you see it, and the courts know it also.  Yet, they often allow these “documents” to be considered to defeat a summary judgment motion.  While this case will not be the death knell or the watershed moment for documents that doctor’s should not be signing, this is  a nice case to see.

No credentials? No issue of fact

Cruz v Martinez, 2013 NY Slip Op 03417 (1st Dept. 2013)

“Even if an anxiety disorder could constitute a serious injury within the meaning of the Insurance Law, the affidavit of Benjamin Hirsch, Ph.D., who evaluated Clark once, did not raise an issue of fact. Indeed, Hirsch, who did not set forth his expert credentials, noted that he did not perform any objective neuropsychological tests, since Clark did not describe any symptoms of neuropsychological distress”

Two problems here.  One, there was no discussion of the doctor’s credentials.  Perhaps a header stating that he is licensed or that he was a PH.D somewhere would have been sufficient.  Furthermore, the failure to examine a body part despite a claimant’s failure to state an injury to the body part is insufficient.

 

Peer hearsay

Kew Garden Imaging v State Farm Mut. Auto. Ins. Co., 2013 NY Slip Op 50748(U)(App. Term 2d Dept. 2013)

“The Civil Court precluded defendant’s medical witnesses from testifying on the ground that those doctors could not testify as to the contents of the medical records they had reviewed in preparing their peer reviews.

As defendant’s doctors should have been permitted to testify (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip [*2]Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), a new trial is required.”

Peer hearsay.  The party that made the frivolous objection at trial should pay the cost for Defendant’s expert.

Oral application granted (untimely papers accepted) and the deeming acceptable of an affirmation of a physician in a different specialty

Payne v Buffalo Gen. Hosp., 2012 NY Slip Op 04901 (4th Dept. 2012)

[Oral application granted and untimely papers deemed accepted]

“With respect to appeal No. 1, we reject defendants’ contention that Supreme Court erred in granting plaintiff’s application and in thus considering plaintiff’s untimely expert affirmation. “While a court can in its discretion accept late papers, CPLR 2214 and [CPLR] 2004 mandate that the delinquent party offer a valid excuse for the delay . . . Additional factors relevant when essentially extending the return day by accepting late papers include, among others, the length of the delay and any prejudice” (Mallards Dairy, LLC v E & M Engrs. & Surveyors, P.C., 71 AD3d 1415, 1416 [internal quotation marks omitted]; see generally Foitl v G.A.F. Corp., 64 NY2d 911, 912-913). Plaintiff’s attorney offered a valid excuse for the delay (see Mallards Dairy, LLC, 71 [*2]AD3d at 1416; Associates First Capital v Crabill, 51 AD3d 1186, 1188, lv denied 11 NY3d 702; cf. Gagnon v St. Joseph’s Hosp., 90 AD3d 1605, 1607), the delay of only several days was minimal (see Associates First Capital, 51 AD3d at 1188), and “any prejudice was alleviated when defendant[s were] permitted to submit . . . reply affidavit[s] in response to plaintiff’s late submission” (Mallards Dairy, LLC, 71 AD3d at 1416).”

[Ability to use a doctor who is outside the specialty as that of the defendant physicians in medical malpractice matter]

“It is well recognized that a plaintiff’s expert need not have practiced in the same speciality as the defendants (see Diel v Bryan, 57 AD3d 1493, 1494). The record includes the redacted affirmation of plaintiff’s expert stating that the expert was a physician duly admitted to practice in New York, had been licensed and had practiced for over 20 years, had a specialty in neurology, and had practiced in emergency room settings in hospitals in Western New York. We conclude that the expert’s affirmation was sufficient to demonstrate that the expert has “the requisite skill, training, education, knowledge or experience from which it can be assumed that [the expert’s] opinion rendered [on the issues of negligence and proximate cause] is reliable”