Wrong records? Inadmissible opinion

In medical malpractice and personal injury litigation, expert testimony forms the backbone of most cases. However, the foundation upon which experts base their opinions must be solid and accurate. A recent First Department decision highlights a critical principle: when experts rely on incorrect medical records, their opinions become worthless in the eyes of the law.

This issue frequently arises in complex medical cases where voluminous records can contain transcription errors, mix-ups, or other inaccuracies. Unlike situations involving biomechanical evidence or expert testimony scope, this case deals with a fundamental question of reliability — what happens when the very records an expert relies upon are demonstrably wrong?

The court’s ruling underscores that expert opinions are only as good as the data they’re built upon. When that foundation crumbles due to factual errors in the underlying records, even the most qualified expert’s opinion cannot save a defendant’s motion for summary judgment.

Case Background

In Mezzone v Goetz, the plaintiff underwent podiatric surgery and subsequently developed an infection in his left foot. The defendants — podiatrists Debbie Bautista, D.P.M., Davis Gordon, D.P.M., and Doctors United Clinic — moved for summary judgment, arguing that no infection was present at the time they treated the plaintiff. Their experts relied heavily on notations in the plaintiff’s records at St. Barnabas Hospital indicating that on June 22, 2010, the surgical wound site was “clean and free from drainage.”

The problem was that these records were wrong. The plaintiff testified that his left foot wound did in fact have pus emanating from the wound site. The plaintiff’s expert — an infectious disease specialist — opined that the treating resident, Dr. Ogbonna, had inadvertently switched his notes for the left and right foot. Critically, even St. Barnabas’s own expert conceded that the notation was likely an error. With three separate sources undermining the accuracy of the records, the defendants’ expert opinions rested on a foundation of sand.

The First Department also addressed the defendants’ challenge to the qualifications of the plaintiff’s expert, who was an infectious disease specialist rather than a podiatrist. The court found this argument unpersuasive, holding that an infectious disease specialist is competent to offer opinions on care involving an infection that stemmed from podiatric surgery. Notably, the court did grant summary judgment to Dr. Ogbonna, the resident, finding that his care was at all times under the supervision of attending physicians.

Jason Tenenbaum’s Analysis:

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 ).”

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.

The Court’s Reasoning and the Fleming Standard

The First Department’s citation to Fleming v Pedinol Pharmacal, Inc. (70 AD3d 422 [1st Dept 2010]) is significant because Fleming establishes a broad principle that extends well beyond switched notes. In Fleming, the court held that an expert’s failure to address pertinent records renders the resulting opinion speculative. This means that an expert who cherry-picks favorable records while ignoring contradictory documentation produces an opinion that is legally insufficient — not merely weakened, but wholly inadequate to establish a prima facie case on summary judgment.

Taken together, Mezzone and Fleming create a two-pronged rule: (1) reliance on records that are demonstrably incorrect fatally undermines an expert opinion, and (2) failure to address relevant records that contradict the expert’s conclusion renders the opinion speculative. The practical effect is that defense experts in medical malpractice cases bear an affirmative obligation to verify the accuracy of the records they rely upon and to account for all pertinent documentation.

Practical Implications

For plaintiff’s attorneys, Mezzone provides a powerful framework for challenging defense expert opinions at the summary judgment stage. When deposing defense experts, counsel should probe which specific records the expert relied upon and whether the expert independently verified their accuracy. Any discrepancy between the records and the patient’s testimony — or between the records and other medical documentation — becomes a potent weapon.

For defense counsel, the lesson is clear: before submitting expert affidavits or affirmations on summary judgment, verify the underlying records with care. If there is any indication that records may contain errors — transcription mistakes, left/right mix-ups, or unsigned notes — address those discrepancies head-on rather than hoping the plaintiff will not notice. An expert who acknowledges an error and explains why it does not alter the opinion is in a far stronger position than one whose entire analysis collapses when the error is revealed.

Practitioners on both sides should also note the court’s treatment of the expert qualification issue. An expert need not practice in the exact same specialty as the defendant to offer competent testimony, provided the expert’s area of expertise is directly relevant to the condition at issue.

Key Takeaway

Expert opinions must be grounded in accurate medical records to be admissible. When experts base their conclusions on demonstrably incorrect documentation — such as switched notes between body parts — courts will reject those opinions as insufficient for summary judgment, regardless of the expert’s qualifications or credentials. Under the Fleming standard, experts who fail to address pertinent records fare no better — their opinions will be deemed speculative as a matter of law.

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