Expert Competency and Medical Literature in New York Medical Malpractice and No-Fault Cases

Key Takeaway

New York court guidance on expert competency and medical literature use in medical malpractice and no-fault cases. Essential reading for Long Island attorneys.

The intersection of expert testimony and medical literature in New York’s legal system presents complex challenges for attorneys practicing in medical malpractice and no-fault insurance cases throughout Long Island and New York City. A recent Second Department decision provides crucial guidance on how courts evaluate expert competency and the proper use of medical literature in these specialized areas of law.

Understanding the Ellis v Eng Decision

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.

The Court’s Analysis of Expert Testimony and Clinical Guidelines

“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.

Expert Specialty Requirements and Foundation Issues

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 ”—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 Critical Issue of Missing Guidelines

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.

Frye Hearing Considerations

The plaintiffs further contend that a Frye hearing (see Frye v United States, 293 F 1013 ), 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).”

Expert Analysis and Implications

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 “eferred to a report from his board- certifying academy regarding one type of equipment at issue…. the reliability of 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.

The Production Requirement for Medical Literature

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 ”—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.

Implications for Long Island and NYC Legal Practice

For attorneys practicing medical malpractice and no-fault law throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx, this decision creates several important considerations:

No-Fault Practice Implications

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.

Arbitration Context

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.

Expert Specialty Considerations

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.

Strategic Considerations for Medical Malpractice and No-Fault Cases

The Ellis decision fundamentally changes how attorneys must approach expert testimony and medical literature in both medical malpractice and no-fault insurance cases. This shift has profound implications for case preparation and trial strategy throughout New York’s legal system.

For Plaintiff’s Attorneys

Plaintiff’s counsel must now ensure that any medical literature referenced by their experts actually exists and supports their position. The failure to properly verify and produce cited guidelines can result in the complete collapse of a case, as demonstrated in Ellis.

For Defense Attorneys

Defense counsel now has a powerful tool for challenging expert testimony by questioning the existence or relevance of cited medical literature. This creates new opportunities for effective cross-examination and summary judgment practice.

The Evolving Landscape of Expert Testimony

The convergence of medical malpractice and no-fault law principles, as evidenced by cases like Ellis and Progressive Medical, reflects the evolving sophistication of New York’s approach to expert testimony in medical cases. Courts are demanding higher levels of precision and reliability in expert opinions, particularly when those opinions rely on medical literature.

This trend toward greater scrutiny of expert testimony serves the interests of justice by ensuring that legal decisions are based on reliable medical evidence rather than unsupported assertions. However, it also creates new challenges for attorneys who must now navigate increasingly complex requirements for expert qualification and foundation.

Frequently Asked Questions

Q: Can an expert testify outside their area of specialization?

A: Generally no, unless they can lay a proper foundation demonstrating familiarity with the relevant medical literature and standards. However, this remains a risky strategy that courts scrutinize carefully.

Q: Must attorneys produce all medical literature cited by their experts?

A: Not necessarily, but if opposing counsel challenges the existence or relevance of cited literature, failure to produce it can result in stricken testimony.

Q: How does this case affect no-fault arbitration proceedings?

A: The principles established in Ellis may influence arbitration proceedings, particularly regarding the duty to produce cited medical literature when challenged by opposing parties.

Q: What is a Frye hearing and when is it appropriate?

A: A Frye hearing determines whether expert methodologies are accepted as reliable within the scientific community. It’s appropriate for challenging methods, not conclusions.

Q: How should attorneys prepare their medical experts in light of this decision?

A: Ensure experts can properly cite relevant literature, verify that cited materials exist and support their positions, and establish proper foundations for opinions outside their primary specialty.

Contact an Experienced New York Medical Malpractice and No-Fault Attorney

The complexities revealed in cases like Ellis v Eng demonstrate the critical importance of experienced legal representation in medical malpractice and no-fault insurance matters. Whether you’re dealing with expert testimony challenges, medical literature disputes, or complex questions of medical necessity, having knowledgeable counsel is essential for success.

Our experienced New York medical malpractice and no-fault insurance attorneys understand these evolving legal standards and can help you navigate the complex requirements for expert testimony and medical evidence. Don’t let technical procedural errors or inadequate expert preparation undermine your case.

Contact us today at 516-750-0595 to discuss your medical malpractice or no-fault insurance case. We serve clients throughout Long Island, New York City, and the surrounding areas, providing the sophisticated legal representation these complex cases require.

Filed under: Evidence Expert journals and treatises Experts

Expert Competency and Medical Literature in New York Medical Malpractice and No-Fault Cases