What You Need to Know About Doctors and Their Records at Trial March 21, 2016; 6:00 PM to 9:00 PM

WHAT YOU NEED TO KNOW ABOUT NSTITUTE OCTORS AND I D

THEIR RECORDS

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY CLE scheduled for March 21, 2016

Program Co-sponsors: NYCLA’s Judicial Section and Torts Committee

Faculty: Robert (Bob) C. Baxter, Baxter, Smith & Shapiro, PC; Hon. Lucy Billings, NYS Sup. Ct.; Benedene Cannata, Esq.; Richard Gurfein, Gurfein Douglas LLP

NYCLA

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional and Non-Transitional credit hours: 1 Skills; 2 PP This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 3 hours of total CLE credits. Of these, 0 qualifies as an hour of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law. ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

Information Regarding CLE Credits and Certification What You Need to Know About Doctors and Their Records At Trial March 21, 2016; 6:00 PM to 9:00 PM

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New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

What You Need to Know About Doctors an Their Records at Trial

Monday , March 21, 2016 6:00 PM to 9:00 PM

Program Co-sponsors: NYCLA’s Judicial Section and Torts Committee

Faculty: Robert (Bob) C. Baxter, Baxter, Smith & Shapiro, PC; Hon. Lucy Billings, NYS Sup. Ct.; Benedene Cannata, Esq.; Richard Gurfein, Gurfein Douglas LLP

AGENDA

5:30 PM – 6:00 PM Registration

6:00 PM – 6:10 PM Introduction and Announcements

6:10 PM – 9:00 PM Discussion • Records • Before Trial • At Trial • Testimony

*There will be 1 ten minute break

DOCTORS AND THEIR RECORDS AT TRIAL

Benedene Cannata, Esq. The Flomenhaft Law Firm, PLLC 90 Broad Street Suite 1901 New York, NY 10004 (646) 747-0303 [email protected]

Records ...... 4 CPLR 4518 (a) ...... 4 Office Records ...... 4 Foundation ...... 7 Records created by other health-care providers contained within a doctor’s office record ...... 8 Records that are illegible or unintelligible ...... 9 Records of Deceased Physician ...... 9 Doctors’ Reports ...... 10 Reports Prepared for Litigation Purposes ...... 10 Reports Made in the Course of a Doctor’s Routine Practice ...... 11 Reports of Doctors Who will Not be Testifying at Trial ...... 14 Hospital Records ...... 17 CPLR 4518 (c): certification ...... 17 Reports Contained in a Certified Hospital Record ...... 19 Original Hospital Records Are Not Required ...... 20 History portion of the hospital record...... 20 Out-of-State Hospital Records ...... 29 Hospital Bills: CPLR 4518 (b) ...... 30 MRI’s X-rays, etc...... 30 CPLR 4532-a: ...... 31 Lost or Destroyed Records or Films ...... 33 Spoliation ...... 35 Altered Records ...... 39 Redaction ...... 39 Before the Trial ...... 41 Subpoena Medical Records ...... 41 1

©Doctors & Their Records at Trial Benedene Cannata, 2015 CPLR 3122-a ...... 41 Subpoena Hospital Records ...... 43 CPLR 2306 (a) ...... 43 Serve Notice to Introduce X-rays, MRI films, etc...... 44 Serve Medical Exchange ...... 45 CPLR 3121 and 22 NYCRR 202.17 ...... 45 Untimely service of medical report leads to preclusion ...... 53 Untimely service of medical report excused ...... 54 Supplemental report served or updated examination conducted shortly before trial ...... 54 Serve CPLR 3101 (d) Disclosure ...... 57 CPLR 3101(d)(i) ...... 57 Don’t Ask, Don’t Get ...... 57 Preclusion for inadequate disclosure ...... 58 No preclusion – disclosure found adequate ...... 59 Preclusion for Untimeliness ...... 59 No preclusion for untimeliness ...... 63 Scheduling and the Medical Doctor ...... 65 Taking a Doctor’s Testimony Before the Trial ...... 70 Substituting the Expert Physician ...... 73 Interviewing Plaintiff's Treating Physician ...... 74 Outrageous Expert Fees ...... 77 Physician’s Duty to Assist in the Administration of Justice ...... 77 Four Instances of Physicians At Trial ...... 80 Treating Physicians ...... 80 Who is a “treating physician”? ...... 80 3101(d) Disclosure Not Necessary for a Treating Physician ...... 83 Examining physicians ...... 90 Is a 3101(d) Disclosure Necessary for an Examining Physician? ...... 91 Medical Examiner (ME) as Witness ...... 92 Expert Physicians ...... 93 CPLR 3101(d) disclosure is necessary but service of a report by a “pure” (i.e. non-examining, non-treating) expert is not ...... 93 The Defendant Physician ...... 94 Trial Testimony ...... 95 The Treating Physician on the Stand ...... 95 The Examining Physician on the Stand ...... 98 Limitation on the Testimony of Plaintiff’s Examining Physician ...... 98 The Expert Physician on the Stand ...... 102 2

©Doctors & Their Records at Trial Benedene Cannata, 2015 Expert Qualifications and Competency ...... 102 Testimony Allowed (or That Should Have been Allowed) ...... 102 Testimony disallowed (or that should have been disallowed) ...... 105 Expert’s specialty in malpractice cases ...... 106 Locality Rule in malpractice cases ...... 108 Hypothetical Questions ...... 109 “Reasonable Degree of Medical Certainty” ...... 110 Calling Adversary's Expert ...... 113 Uncontradicted Expert Opinion ...... 116 The Defendant Physician on the Stand ...... 118 Custom and Habit ...... 120 Testimony Comporting with Medical Exchange ...... 121 Testimony Comporting with 3101(d) disclosure ...... 126 Testimony Comporting with Bill of Particulars ...... 133 Basis of Opinion ...... 134 Testifying or opining based (at least in part) on reports, records, or films that are not in evidence ...... 144 A Doctor’s Testimony as to Causation ...... 153 Forensic Pathologists ...... 159 Medical Literature ...... 161 On Direct Examination ...... 161 Use of medical literature when Plaintiff calls Defendant Doctor as his witness ...... 165 Use of medical literature on cross-examination ...... 166 Use of medical literature on redirect examination ...... 168 Other Hearsay ...... 169 Impeaching the Physician at Trial ...... 170 The Possibility of a Missing Witness Charge ...... 173 Missing Witness Charge Not Warranted ...... 174 Missing Witness Charge Warranted ...... 175 Lawyers Behaving Badly with Doctors ...... 177 Miscellaneous ...... 179 INDEX ...... 181

©Doctors & Their Records at Trial Benedene Cannata, 2015 Records

CPLR 4518 (a) Rule 4518. Business records

(a) Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.

Office Records

Wilson v Bodian, 130 AD2d 221 (2d Dept 1987) This is perhaps the most notable case on the different categories of medical records. Here, a key medical witness was subpoenaed, but didn’t appear at trial. P introduced his records into evidence laying an improper foundation (that was not objected to). Only a portion was typewritten, while other parts were handwritten, and included sketches and abbreviations. Although P’s counsel asked other doctors what the abbreviation “BX” meant, no one was quite sure. P’s counsel repeatedly referred to these records during the trial. The Second Department explained the different types of medical records, such as hospital records, physicians' office records and physicians' medical reports, stating the following:

©Doctors & Their Records at Trial Benedene Cannata, 2015 As to reports prepared for litigation:

“Doctors' reports are often prepared at the request of counsel on behalf of the parties. Such reports are generally material prepared for litigation and are not the systematic, routine, day-by-day type of record envisioned by the business-records exception (see, People v Kennedy, supra, 68 NY2d at 579, 503 NE2d 501). Therefore, physicians' reports prepared for litigation are generally inadmissible in evidence under the business records exception to the hearsay rule (see, Sabatino v Turf House, 76 AD2d 945; Bilotti v Rosen, 33 AD2d 790; Pickering v Freedman, 32 AD2d 649; cf, Matter of Katz, 230 App Div 172).”

As to physicians’ records in general:

“Similar to hospital records, it is the business and duty of a physician to diagnose and treat a patient's illness. Therefore, entries in the office records germane to diagnosis and treatment are admissible, including medical opinions and conclusions.”

As to the handwritten portions of the physician’s record.

”In this case, (the absent physician’s) records consisted almost exclusively of short notations, some of which were illegible, and sketches. Where records are illegible or, as here, comprehensible only to the creator, the probative value is minimal or nonexistent …. A tape recording that is so inaudible and indistinct that a jury must speculate as to its contents is inadmissible…. Similarly, a notation in a physician's office record which is illegible is not admissible.”

As to the abbreviations in the physician’s record:

”Unlike hospital records, which contain generally accepted and standard medical abbreviations, a physician's office records may contain purely personal abbreviations known only to the physician. In order to admit a medical abbreviation or symbol written by a doctor in his office record, which abbreviation is not within the ken of the jury, in the absence of the physician author, there must be a foundation laid that such an abbreviation has a well-known and accepted meaning in the medical profession. An abbreviation of this kind that is not interpretable as having a definite and accepted meaning is not admissible.”

©Doctors & Their Records at Trial Benedene Cannata, 2015 Napolitano v Branks, 141 AD2d 705 (2d Dept 1988) A physician’s office records may be received into evidence under the business record exception to the hearsay rule, even if the physician testifies at the trial as to their substance and contents.

Bruce-Bishop Jafar , 302 AD2d 345 (2d Dept 2003) “Where a proper foundation is laid, a physician's office records or hospital records, including medical opinion, are admissible as evidence at trial to the extent that they are germane to diagnosis and treatment (see Williams v Alexander, 309 NY 283, 287, 129 NE2d 417; Wilson v Bodian, 130 AD2d 221, 231; CPLR 4518(a) ). Thus, the office records of P’s treating physicians were properly admitted into evidence.”

James v Farhood, 96 AD3d 503 (1st Dept 2012) In this case involving two Ps, P1 challenged the testimony of P2’s treating physician concerning the results of an EMG performed on P2 by a second physician. But the objection had been waived when P1 consented to entering the records of that second physician, which included the EMG, into evidence.

Siemucha v Garrison, 111 AD3d 1398 (4th Dept 2013) P's failure to object within 10 days before trial waived any objection P had to admissibility of his medical records as business records. However P didn’t waive any objection to admissibility based on other rules of evidence. Thus, P properly objected to the admission of some of the records based on relevancy.

Donoso v Motor Vehicle Accident Indemn. Corp., 118 AD3d 461 (1st Dept 2014) At the trial of this MVA case, P never called either the treating or expert physician to testify. Apparently, P intended to rely only on the ER, ambulance, and medical records, which were in evidence. Held, P presented no evidence of a causal connection between the MVA and her lumbar injury.

“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 wh ich 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.” [Emphasis supplied.]

©Doctors & Their Records at Trial Benedene Cannata, 2015 The verdict in P’s favor was reversed and the complaint dismissed.

Rivera v Port Auth. of New York & New Jersey, 2015 WL 1471600 (1st Dept 2015) Held: X rays taken by P's testifying treating physician were properly admitted into evidence, the court citing CPLR 4518 and noting that D was aware of the films via an updated physician's report, and had been given a HIPAA authorization to obtain a copy of the films.

Garritano v Garritano, 62 AD3d 657 (2d Dept 2009) No error to admit into evidence the medical testimony and records of P's experts (apparently treating doctors) , since they relied on those records in P's diagnosis and treatment.

Foundation

McClure v Baier's Automotive Service Center, Inc., 126 AD2d 610 (2d Dept 1987) P laid an adequate foundation for the admission of P’s former treating physician’s records through the testimony of the physician’s medical secretary, who explained that the entries in the record were made in the regular course of business by members of the physician's staff during P’s office visits.

Dayanim v Unis, 171 AD2d 579 (1st Dept 1991) The office records of P’s treating physicians were not admissible because P failed to lay a foundation by calling a witness with personal knowledge of the doctors' business practices and procedures.

Faust v McPherson, 4 M 3d 89 (App Term, 2d and 11th Jud Dists 2004) P was treated by Dr. A, a chiropractor at Woodhaven Chiropractic. Woodhaven shared a building with two separate practices, Physical Medicine & Rehabilitation and Queens Spinal Rehabilitation, These practices often dealt with the same patients. As luck would have it – all practices went out of business. . The trial court allowed P to admit the records from all three practices into evidence through Dr. A. This was error because Dr. A. had left Woodhaven mid-way through P’s four-year course of treatment. He was in no position to know about the record keeping practices after he left, and he had never been an employee or record custodian of the other two practices.

©Doctors & Their Records at Trial Benedene Cannata, 2015 DeAngelis v New York University Medical Center, 15 AD3d 185 (1st Dept 2005) The trial court properly precluded P from utilizing at trial a letter written by her treating cardiologist some five years post malpractice. “The relevance of the diagnostic opinion in the letter to P’s condition at the time of the complained-of malpractice was hardly clear and the opinion was impermissibly speculative, particularly in the absence of testimony from (the cardiologist).”

People v Bynum, 33 AD3d 1017 (1st Dept 2006) The court properly exercised its discretion in precluding D from introducing medical records to establish his blood alcohol level, since D did not lay a foundation by calling any witness to explain the meaning or significance of that particular level.

Rodriguez v City of New York, 67 AD3d 884 (2d Dept 2009) “[S]ince it was established that the medical records of Rodriguez's treating physician were business records made in the ordinary course of business, the trial court should have allowed those records into evidence.” The result was a new trial.

Records created by other health-care providers contained within a doctor’s office record

Stein v Lebowitz-Pine View Hotel, Inc., 111 AD2d 572 (3d Dept 1985) Certain laboratory reports, X-rays and electrocardiograms included in a physician’s office records and entered by either the physician or his staff were admissible under CPLR 4518(a). “That these records were prepared by other persons merely affects the weight of this evidence, not its admissibility.”

Freeman v Kirkland, 184 AD2d 331 (1st Dept 1992) The physician's entire medical chart, including records, reports, and correspondence generated by other medical specialists and laboratories, was admissible under CPLR 4518. The physician's testimony established that the records related to the diagnosis and treatment of P’s injuries.

Cohn v Haddad, 244 AD2d 519 (2d Dept 1997) The court noted that a physician's office records, including medical opinion, are admissible to the extent that they are germane to diagnosis. Thus, the reports of other physicians contained in each doctor's records generally are admissible.

©Doctors & Their Records at Trial Benedene Cannata, 2015 Fanelli v di Lorenzo, 187 AD2d 1004 (4th Dept 1992) Here P’s father, a physician, treated her after an accident. He wrote a letter to a psychiatrist who was treating P’s for the emotional problems associated with this incident. This letter was properly admitted as a business record. Because the incidents related in the letter were germane to diagnosis and treatment, there was no basis to exclude or redact them.

White v Kyung Kim, 29 AD3d 685 (2d Dept 2006) “While the Supreme Court erred in determining that the letters of the P’s treating physicians were admissible pursuant to CPLR 3122-a, the error did not prejudice a substantial right (see CPLR 2002).” The decision imparts no helpful details as to the “letters.” However D’s appellate brief indicates that these were letters that had been exchanged between two nontestifying treating physicians (whose records apparently were in evidence) as to their opinions on P’s prognosis (including whether she might need a liver transplant). D argued that P’s expert was improperly permitted to opine based in part on those letters.

Records that are illegible or unintelligible

Wilson v Bodian, 130 AD2d 221 (2d Dept 1987) (See above.)

People v Jessamy, 282 AD2d 288 (1st Dept 2001) Trial court properly excluded certain (not described) medical records on the ground that they were not readily understandable and had the potential to confuse or mislead the jury.

Fortunato v Murray, 101 AD3d 872, 874 (2d Dept 2012) “With respect to those documents which are found to be medical records, if any portion of a record is deemed illegible, the medical record as a whole is not inadmissible. Rather, only those entries or notations within the record that are illegible should be deemed inadmissible.”

Records of Deceased Physician

Jezowski v Beach, 59 Misc 2d 224 (Sup Ct Oneida County 1968) 9

©Doctors & Their Records at Trial Benedene Cannata, 2015 This case involved the admissibility of "office cards" of a deceased doctor. The doctor's widow identified the office cards, written in the doctor's own handwriting, each time he saw the patient. The records were admissible. The court wrote:

"The report was signed and dated by the doctor. Such a report, made in the regular course of the doctor's practice in his own handwriting, dated and factual, even though it contains his medical opinion, should be and is admissible. Particularly, as here where it is shown that such a record was made as an essential part of a doctor's professional practice in caring for his patient and also the basis upon which he treated his patients, such a record is admissible. (5 Benders, NY Evidence, 374.03, pp. 230-234.)"

Note, this case was discussed in Wilson v Bodian, 130 AD2d 221 (2d Dept 1987), discussed above.

In re Katz, 230 App Div 172, 243 NYS 96 (1st Dept 1930) A deceased physician's records that are identified and shown to have been kept in the regular course of business are admissible.

Doctors’ Reports

Reports Prepared for Litigation Purposes

Pickering v Freedman, 32 AD2d 649 (2d Dept 1969) Although P obtained the defense physical examination report via CPLR 3121(b), it was inadmissible hearsay. Thus it was improperly received into evidence on P's case, and P was improperly permitted to imply that D was bound by it. The expert was unavailable to testify (having suffered a stroke) and D presented no evidence to rebut P's medical claims. However, under the circumstances the error was harmless. The report merely stated the extent of physical injuries that were plainly observable by the jury.

Wilson v Bodian, 130 AD2d 221 (2d Dept 1987) As already discussed, this case announced the rule regarding doctors' reports prepared at the request of parties’ attorneys. These reports are generally material prepared for litigation and are not the “systematic, routine, day-by-day type of record envisioned by the business-records exception.” They are therefore, generally not admissible in evidence under the business records exception to the hearsay rule.

©Doctors & Their Records at Trial Benedene Cannata, 2015 Schwartz v Gerson, 246 AD2d 589 (2d Dept 1998) It was reversible error to admit into evidence, and to allow P’s expert to comment on, a report prepared by a doctor who had examined P for his insurance carrier. Even if the report was subject to the professional reliability exception to the hearsay rule, the expert here went too far. He basically read the entire report to the jury, so P unfairly enjoyed “no risk of cross-examination” of the doctor who had written it.

Flaherty v American Turners New York, Inc., 291 AD2d 256 (1st Dept 2002) Here the court equated a disability report, transcribed by the Department of Disability, to a report prepared for litigation purposes.

“Further, the jury could not properly evaluate the issue of future damages because the trial court improperly admitted into evidence a disability report, dictated over the phone by P’s physician, Dr. Comfort, transcribed by the Department of Disability, and mailed to the doctor's office. While a physician's office records are generally admissible in evidence under the "business records" exception to the hearsay rule, these records are distinguishable from physicians' reports, which are usually prepared for a specific purpose and are generally not the systematic, routine, day-by-day records which are the focus of the business records exception (see, Wilson v Bodian, 130 AD2d 221, 229- 30).

Daniels v Simon, 99 AD3d 658 (2d Dept 2012) In this MVA case, the trial court properly declined to admit into evidence medical reports prepared by physicians who had examined P on behalf of her insurance carrier, as these doctors were unavailable for cross-examination.

Reports Made in the Course of a Doctor’s Routine Practice

Sabatino v Turf House, Inc., 76 AD2d 945 (3d Dept 1980) Trial court properly excluded from the evidence a medical report by one doctor and a portion of a second report by another doctor. The reports contained diagnoses and opinions relative to P’s condition. Though available, neither doctor was called to testify. P’s counsel tried to lay the foundation for ordinary course of business practice through the testimony of another doctor. The court rejected P's argument that the reports should have been received in evidence under CPLR 4518 (a). Even if the reports were otherwise admissible under 11

©Doctors & Their Records at Trial Benedene Cannata, 2015 the business record rule, “a doubtful proposition”, it must first be demonstrated that the author made the report in the regular course of his business. To lay this foundation, the proponent must call someone with personal knowledge of the maker's business practices and procedures. As P failed to do this, exclusion was proper.

Paulino v Marchelletta, 216 AD2d 446 (2d Dept 1995) “The trial court properly expunged from the record a medical report since a proper foundation for its admission was never established.”

Kasman v Flushing Hosp. and Medical Center, 224 AD2d 590 (2d Dept 1996) D offered into evidence the report of a doctor who had examined P once, 13 years earlier. It was error to allow the report into evidence. D failed to offer the requisite foundational testimony under CPLR 4518 (a), or certify or authenticate the report under CPLR 4518 (c).

Cohn v Haddad, 244 AD2d 519 (2d Dept 1997) In this medical malpractice case, three subsequent treating physicians testified for P. Apparently each physician had reports and/or letters from the other physicians in his medical file. The Second Department noted that a physician's office records, including medical opinion, are admissible to the extent that they are germane to diagnosis. Thus, the reports of other physicians contained in each doctor's records generally are admissible. In this case however, the trial court did not err by barring a treating physician from reading statements contained in another physician’s report that was contained in his office record. That would have been bolstering, since that other physician was also testifying at trial.

Crisci v Sadler, 253 AD2d 447 (2d Dept 1998) P’s counsel sought to lay a foundation for the admission of a treating physician’s medical records and report as business records. The trial court ruled that the material was inadmissible. Finding reversible error and remanding for a new trial, the Second Department stated: "It is well settled that ‘(a) report made in the ordinary course of a doctor's medical practice is admissible in evidence as a business record.’”

©Doctors & Their Records at Trial Benedene Cannata, 2015

Batts v Rutrick, 298 AD2d 417 (2d Dept 2002) In this auto accident case, a medical report (type of health-care provider not stated) noting that P had a history of similar complaints was admitted into evidence over P’s objection that D hadn’t provided notice of it, and that its admission violated CPLR 3101(d): “However, the report was not the testimony of an expert witness for which notice would have been required under that statute. Rather, as Defendants correctly contend, the …report was properly admitted as a business record.”

Wilbur v Lacerda, 34 AD3d 794 (2d Dept 2006) In a lead poisoning case, P sought to introduce four reports by psychologists and a speech-language pathologist regarding their separate evaluations of the infant. Counsel elicited testimony that the reports were made in the ordinary course of business. The trial court barred their admission, stating that they were not subject to the business record exception. The exclusion of that evidence was error. The court noting that "a report made in the ordinary course of a doctor's medical practice is admissible in evidence as a business record."

Bronstein-Becher v Becher, 25 AD3d 796 (2d Dept 2006) In a Family Court proceeding, the trial court refused to let certified medical reports from the father's psychiatrist into evidence, stating they were “not a medical record (and) not a hospital record. It's a letter. Therefore, it's hearsay.” This was proper. Medical reports, as opposed to day-to-day business entries of a treating physician, are not admissible as business records where they contain the doctor's opinion or expert proof. The narrative reports here were simply letters summarizing the doctor’s diagnosis, treatment, and opinion as to whether the father could go back to work. There was no demonstration that they were in fact business records per CPLR 4518 (a). Perhaps most important to remember – their certification did not cure the foundational defect, because only hospital records, and not physician office records, are admissible by certification.

Daniels v Simon, 99 AD3d 658 (2d Dept 2012) In this MVA case, the narrative medical report of P's treating neurologist was properly excluded. “Although office records which contain a treating physician's day- to-day business entries qualify for admission as business records if the foundational requirements of CPLR 4518(a) are satisfied, a medical report is not admissible as a business record where, as here, it contains the physician's opinion or expert proof.”

©Doctors & Their Records at Trial Benedene Cannata, 2015

Reports of Doctors Who will Not be Testifying at Trial

These cases address the admissibility of the reports written by non-testifying physicians. For cases that address the propriety of testimony relating to the contents of a report written by a non-testifying physician without the report having first been admitted into evidence, see Testifying from Materials Not in Evidence, infra.

Serra v City of New York, 215 AD2d 643 (2d Dept 1995) The admission of an MRI report performed and interpreted by another physician was found to be error. However, here the error was harmless, since the testifying physician had formed an opinion that P had suffered certain injuries prior to ever receiving the report.

Ferrantello v St. Charles Hosp. & Rehabilitation Ctr., 275 AD2d 387 (2d Dept 2000) Although no proper foundation was laid for the admission of the MRI report and X-rays, their admission into evidence was harmless error. P’s' medical expert was properly permitted to testify based on his own examination, review of certified hospital records, a second physician's medical records, x-rays, plus the MRI. The expert relied on those materials, which were “of (the) kind accepted in the profession as reliable in forming a professional opinion”, primarily to confirm the conclusions he had reached from his exam and record review.

Sigue v Chemical Bank, 284 AD2d 246 (1st Dept 2001) Apparently the arthrogram report at issue in this slip and fall case was both admitted into evidence and also served as the basis for another doctor’s opinion. It was error to admit the report into evidence. It had been prepared by a non- testifying physician, constituted an expression of opinion on the crucial issues of the existence and severity of P's injuries, wasn’t addressed to the physician who testified as to its contents, and served as the basis for that physician’s testimony.

Wagman v Bradshaw, 292 AD2d 84 (2d Dept 2002) P’s treating chiropractor sent him for MRI scans. At trial, the chiropractor was permitted to testify as to the results of the MRI based on his review of the written MRI report. The chiropractor had never reviewed the films himself, and apparently they were not available at trial. The court held that admission into evidence of the written report prepared by a non-testifying health-care provider violated the rule against hearsay and the best evidence rule. 14

©Doctors & Their Records at Trial Benedene Cannata, 2015 Read more about this case in “Testifying from Materials Not in Evidence,” infra.

Adkins v Queens Van-Plan, Inc., 293 AD2d 503 (2d Dept 2002) P’s neurologist shouldn’t have been permitted to testify that P had an internal derangement and detachment of the medial meniscus, based on an arthrogram report. The report had been prepared by a non-testifying doctor, and wasn't addressed to the neurologist. Moreover, the report shouldn’t have been admitted into evidence since it constituted an expression of opinion on the crucial issues of the existence and severity of P's injuries. Here the report was the principal basis for the neurologist's opinion, "not merely a link in the chain of data upon which that witness relied."

Staley v New York State And Local Retirement Systems, 290 AD2d 721 (3d Dept 2002) This was an Article 78 proceeding regarding petitioner's applications for accidental and ordinary disability retirement benefits. The court found in pertinent part: “(T)he admission into evidence of the hearsay report of the nontestifying neurosurgeon who performed petitioner's back surgery was not error here for, although petitioner did not call this witness in his direct case, he, nevertheless, "opened the door" by questioning respondent's medical expert about excerpts from the report upon cross-examination. Therefore, it was not inappropriate for the Hearing Officer to grant respondent's request to admit the entire report (see generally, Chabica v Schneider, 213 AD2d 579), nor has petitioner demonstrated prejudice by the denial of his request to call the surgeon as a witness at the close of respondent's proof.”

Neumire v Kraft Foods, Inc., 291 AD2d 784 (4th Dept 2002) This case relays the message that there will no shortcuts when to comes to laying the proper foundation for admission of a medical report into evidence. Here P argued that because the expert relied on certain materials, that reliance should serve independently as the basis for their admission into evidence. Not so.

“Plaintiffs offered the reports as evidence-in-chief on the issue of causation and failed to lay the foundation for their admission in evidence. The fact that their expert reviewed the reports and relied upon them in reaching his opinion does not render those reports admissible as a matter of law.”

©Doctors & Their Records at Trial Benedene Cannata, 2015 Jemmott v Lazofsky, 5 AD3d 558 (2d Dept 2004) It was error to admit into evidence MRI reports and to permit P’s medical expert - - who had no personal knowledge of P s alleged injuries -- to offer redirect testimony regarding their contents. The films had not been admitted into evidence, and the reports had been prepared by other health-care professionals who didn't testify. It was further error to allow P’s attorney to cross examine D ’s medical expert regarding MRI films and the MRI report -- as neither had properly been admitted into evidence. The result was a new trial.

Clevenger v Mitnick, 38 AD3d 586 (2d Dept 2007) At trial, P’s treating physician testified that the doctors who had performed MRI and EMG scans were reliable, that he used their reports to form a treatment plan, and that these reports were the kind generally accepted by physicians in the diagnosis and treatment of their patients. Over objection, the court admitted the MRI reports not for their truth, but because the treating doctor had relied on them for diagnosis and treatment. Held: “D correctly contends that admission of the MRI reports violated the principles set forth in Wagman v Bradshaw. This court held that the admission of a hearsay MRI report deprived the party against whom the MRI report was offered of the opportunity to cross-examine the declarant.”

Meegan v Progressive Ins. Co., 43 AD3d 182 (4th Dept 2007) Trial court abused its discretion in precluding a D’s expert from testifying as to an entry in the records of one of P’s treating doctors. The doctor's office manager signed an affidavit stating that P hadn’t become a patient until about a month after the date of the entry. But the office manager never established that she had any personal knowledge of the entry, nor did she establish that she was responsible for making such entries. Even if she had made such a showing, the certified medical records were admissible in evidence pursuant to CPLR 4518 (c) and constituted prima facie evidence of the facts contained therein. P s' contention with respect to the accuracy of the entry in those medical records goes to the weight to be given to the medical records, not their admissibility.

Cuttino v New York State Comptroller, 80 AD3d 1067 (3d Dept 2011) In a proceeding to determine whether a correction officer was disabled, the respondent relied, inter alia, on the report of a neurologist who didn’t testify at the hearing. Held, petitioner waived any objection to the report's admission or consideration by expressly consenting to its introduction.

©Doctors & Their Records at Trial Benedene Cannata, 2015 D'Andraia v Pesce, 103 AD3d 770 (2d Dept 2013) Although a Florida treating physician’s records were properly admitted into evidence, it was error to allow a 1993 biopsy report that was contained within those records to be introduced into evidence, and to allow P's experts to base their opinions, at least in part, on its contents. Citing Wagman, the court reiterated that: “A written report prepared by a nontestifying doctor interpreting the results of a medical test is not admissible into evidence.” An expert may only “rely on out-of-court material if ‘it is of a kind accepted in the profession as reliable in forming a professional opinion,’ as shown “by evidence establishing the reliability of the out-of-court material.” But here, there was no proof that the report was reliable, and D had no opportunity to cross- examine the physician who wrote it.

Hospital Records

CPLR 4518 (c): certification There is no need to lay a foundation to admit hospital records into evidence, as long as they bear the proper certification. Hospital records are prima facie evidence of the facts contained therein. The fact finder is allowed, but not required, to accept the records as truthful.

CPLR 4518 (c) sets forth the requirements of certification.

The certification must be signed by • head of hospital; or • an employee delegated for the purpose of signing hospital records; or • a qualified physician; or • if records are kept in a warehouse, the manager of the warehouse.

The certification must demonstrate that the requirements of CPLR 4518 (a) have been met. That is: • that the record was made in the regular course of business; • that it was the regular course of business to make a record of this type; and • that the record was made at or about the time of the occurrence of the events recorded.

2d Dept

Matter of Damon J., 144 AD2d 467 (2d Dept 1988) Family Court properly refused to consider the contents of an uncertified hospital record. CPLR 4518 (c) requires that hospital records bear a certification or 17

©Doctors & Their Records at Trial Benedene Cannata, 2015 authentication in order to be admitted as evidence. As there was a failure to comply with the statutory rules, the Family Court's ruling was appropriate

Jajoute v NYCH&HC, 242 AD2d 674 (2d Dept 1997) At issue was the continuous treatment doctrine, and whether a notation in a hospital record that the patient had returned to the hospital clinic with the same problem was enough of an indication of continuous treatment. It wasn’t. The record was uncertified, the author was unidentified, and there was no evidence to support the conclusory assumption that the later visit had been for the same problem. Abbas v Cole, 7 AD3d 649 (2d Dept 2004) Reversible error to admit P’s uncertified hospital records and unsworn medical reports into evidence at an inquest.

Matter of Kai B. v Masako O., 38 AD3d 882 (2d Dept 2007) Hospital and medical records are admissible if the proponent offers either foundational testimony or certification.

Westchester Med Ctr v Progressive Cas., 51 AD3d 1014 (2d Dept 2008) Blood alcohol test results, as set forth in a certified hospital record, constitute prima facie evidence of the test pursuant to CPLR 4518 (c).

3d Dept

Maxcy v County of Putnam, 178 AD2d 729 (3d Dept 1991) If a hospital record is certified, all test results contained therein are admissible, as long as they are relevant. Here the court erred in refusing to admit blood alcohol test results contained in the hospital chart.

Beck v Albany Medical Ctr. Hosp., 191 AD2d 854 (3d Dept 1993) Medication dosage records are admissible as part of the hospital record. That the entries were not made until after the drug was administered doesn’t preclude its admission, so long as the record is made within a reasonable time after the event.

People v Kossman , 46 AD3d 1104 (3d Dept 2007) The victim's medical record was properly received in evidence. It was germane to medical treatment and diagnosis, and a proper foundation was laid, including a statement from a hospital administrator certifying the authenticity and business purpose of the report.

LaDuke v State Farm Insurance Co., 158 AD2d 137 (4th Dept 1990) Portion of certified hospital record relating to a blood alcohol test should have

©Doctors & Their Records at Trial Benedene Cannata, 2015 been admitted into evidence. The failure to do so was reversible error. "CPLR 4518 (c) and 2306 (a) provide in relevant part that properly certified hospital records relating to the condition or treatment of the patient are admissible and constitute prima facie evidence of the facts contained therein."

Anderson v House of Good Samaritan Hospital, 44 AD3d 135 (4th Dept 2007) Army civilian referral form, which was part of the certified hospital record, was properly received in evidence.

In re Bentleigh O., 125 AD3d 1402 (4th Dept 2015) In this proceeding adjudicating a child as abused and neglected, medical records were entered into in evidence without a proper certification as required by Family Court Act 1046(a)(iv). That statute provides that, where certification of medical records is completed “by someone other than the head of the hospital[,] ... [it] shall be accompanied by a photocopy of a delegation of authority signed by both the head of the hospital ... and by such other employee.” Here, the certification didn’t include the necessary delegation of authority. Although the court erred in admitting the medical records in evidence, the error harmless.

Reports Contained in a Certified Hospital Record

Lanpont v Savvas Cab Corp., Inc., 244 AD2d 208 (1st Dept 1997) An x-ray report is properly admitted as part of the certified copy of the hospital record, notwithstanding the failure to produce the original x-rays. On appeal, Ds couldn’t argue violation of the best evidence rule, since their trial objection was based solely on hearsay grounds.

Shahram v Horwitz, 5 AD3d 1034 (4th Dept 2004) An operative report is properly admitted into evidence under the business records exception, and may be commented and relied upon by P’s medical expert.

Banister v Marquis, 87 AD3d 1046 (2d Dept 2011) The reports of a hospital radiologist (in this case from LIJ Medical Center) were properly admitted into evidence, the court citing CPLR 2306 and 4518(a), (c).

Ambulance Call Sheet

O'Connor v Inc. Village of Port Jefferson, 104 AD2d 861 (2d Dept 1984) 19

©Doctors & Their Records at Trial Benedene Cannata, 2015 "Emergency ambulance report", apparently standing alone, created by volunteer ambulance corps was improperly read into evidence without any evidence to establish the document’s authenticity, or that it was prepared in the ordinary course of business of the ambulance service. Nor could the ambulance service be characterized as a department or bureau of the municipal corporation such that it might allow the court dispense with the need for an authentication witness.

Original Hospital Records Are Not Required

CPLR 2306 (a) “A transcript or full-sized legible reproduction, certified as correct by the superintendent or head of the hospital or his assistant…” is admissible unless otherwise ordered by a court.

History portion of the hospital record Admissible Entries

People v Ortega, 15 NY3d 610 (2010) This Court of Appeals decision involved two cases. A statement that complainant was “forced to” smoke a white, powdery substance was relevant to complainant’s diagnosis and treatment. The statement implies that the patient couldn’t control the amount or the nature of the substance he ingested. The patient’s treatment could differ from a patient who intentionally took the drugs. References to “domestic violence” and to the existence of a safety plan were also admissible under the business records exception. Not only were these statements relevant to complainant’s diagnosis and treatment, domestic violence was part of the attending physician’s diagnosis in this case. “A doctor faced with a victim who has been assaulted by an intimate partner is not only concerned with bandaging wounds. In addition to physical injuries, a victim of domestic violence may have a whole host of other issues to confront, including psychological and trauma issues that are appropriately part of medical treatment.”

1st Dept

Cotter v Mercedes-Benz, 108 AD2d 173 (1st Dept 1985) Nurse’s note detailing P’s admission that he was drug-dependent at the time of the accident, as well as reference to P’s symptoms of drug withdrawal, were admissible.

©Doctors & Their Records at Trial Benedene Cannata, 2015 Eitner v 119 West 71st Street Owner Corp., 253 AD2d 641 (1st Dept 1998) Statement in hospital record as to how injury occurred – that P had twisted his knee after he stepped off a ladder -- was admissible because it was relevant to treatment and to the determination of the presence and extent of other injuries to other parts of P’s body.

Rojas v MVIAC, 37 AD3d 216 (1st Dept 2007) FDNY ambulance call report contained statement that MVIAC petitioner reported that he was injured while he was defending himself and punched a man. On a motion for summary judgment, this was enough to raise a triable issue as to how petitioner was injured.

Martinez v NYCTA, 41 AD3d 174 (1st Dept 2007) The ambulance call report contained P’s statement, in Spanish, that she had slipped on stairs. D established that P was the source of the statement, and that the translation was accurate. Statement was admissible as an admission.

Preldakaj v Alps Realty of N.Y. Corp., 69 AD3d 455 (1st Dept 2010) Ps claimed that they were observing their cousin apply polyurethane to flooring when fumes caused a fire, injuring them. But hospital and Fire Department records indicated that Ps were the ones who were applying the polyurethane when the fire broke out. P claimed that the statements were unreliable because they had morphine in their systems at the time. Nice try. The Appellate Division ruled that the statements were admissible, and the effects of morphine went to the weight, not the admissibility of the statements.

2d Dept

Barzaghi v Maislin Transport, 115 AD2d 679 (2d Dept 1985) In this accident case, D called as one of its witnesses a "Social Worker for the cardiac service" employed by the hospital to testify to a conversation with P and the resultant record entry concerning the accident. This text of this decision contains the salient portions of the line of questioning that ensued. The statement at issue contradicted P’s trial version of how the accident happened. The court found that the introduction of this sentence from the hospital chart was proper either under the business record exception to the hearsay rule or as an admission by P. “The subsequent cross-examination of the witness by P’s counsel, which elicited some wavering by the witness as to whether it was P himself who told her how the accident happened, merely presented the jury with an issue of credibility (Richardson, Evidence, 464, p. 452 [10th Ed, Prince]) .”

©Doctors & Their Records at Trial Benedene Cannata, 2015

People v Singleton, 140 AD2d 388 (2d Dept 1988) A statement that the patient was punched in the face was admissible as relevant to diagnosis and treatment.

Wright v New York City Housing Authority, 273 AD2d 378 (2d Dept 2000) Statement that P had been running just before being injured was admissible and should not have been redacted from the emergency room record. The court noted that the patient's explanation as to how he was hurt may be helpful to understanding the medical aspects of the case.

Amann v Edmonds, 306 AD2d 362 (2d Dept 2003) P’s statement as to the cause of her fall was admissible under the business record exception. The court makes no mention as to whether the statement was germane to treatment, but rather states that it was inconsistent with P’s trial testimony.

People v Baltimore, 301 AD2d 610 (2d Dept 2003) lv den, 100 NY2d 592 (2003) An entry in the hospital records stating that the patient was "kicked, slapped, pulled by her hair and had a knife to her neck" was properly admitted.

Rodriguez v Piccone, 5 AD3d 763 (2d Dept 2004) Because hospital entries were germane to the diagnosis and treatment, it was error for trial judge to exclude them. The result was a new trial.

People v Yun, 35 AD3d 494 (2d Dept 2006) Trial court properly admitted statement in complainant's hospital record that she had sustained injury to her eye "after being punched", as the statement was relevant to diagnosis and treatment.

People v Greenlee, 70 AD3d 966 (2d Dept 2010) lv den 14 NY3d 888 (2010) Statement in medical record that patient was attacked by friends of her former boyfriend who were trying to stop her from testifying against him in a domestic violence proceeding was admissible. The information was relevant to treatment because it could be used to develop a discharge plan that would ensure the victim’s safety.

Kamolov v BIA Grp., LLC, 79 AD3d 1101 (2d Dept 2010) Statements contained in an ambulance report were admissible. They constituted admissions by P since they were inconsistent with his current account of the accident and the statements were satisfactorily connected to him. 22

©Doctors & Their Records at Trial Benedene Cannata, 2015

Nelson v Friends of Associated Beth Rivka School for Girls, 119 AD3d 536 (2d Dept 2014) During jury selection and throughout the trial, D suggested that infant P had been improperly “coached” to testify that she had fallen from monkey bars. It was error to preclude an ER entry that the infant told the ER doctor that she had fallen from the monkey bars. The statement “made at a time before a motive to falsify exists may be received in evidence after the testimony of the witness is attacked as a recent fabrication.” Also, it was germane to medical treatment.

Robles v Polytemp, Inc., 127 AD3d 1052 (2d Dept 2015) P claimed that he was wearing a seatbelt at the time of his accident. The trial court properly declined to redact entries in P’s hospital records indicating that he wasn’t wearing a seat belt. The entry at issue here clearly indicated that P was the source of the information and the court found that the entry was germane to diagnosis and treatment.

3d Dept

People v Rogers, 8 AD3d 888 (3d Dept 2004) "Although statements made by the victim to medical personnel were hearsay, such statements are admissible under the business records exception, as long as they are germane to the patient's subsequent medical treatment and diagnosis. The sexual assault information sheet had a dual purpose of investigation and treatment of the victim' s potential physical and psychological injuries."

4th Dept

People v White, 306 AD2d 806 (4th Dept 2003) Patient statements made to medical personnel that are (1) relevant to diagnosis and treatment when recorded in medical records; and (2) testified to by the personnel, are admissible under the business record exception to the hearsay rule.

Smolinski v Smolinski, 78 AD3d 1642 (4th Dept 2010) In this MVA case where a main issue was whether P or his brother was driving the vehicle, the records contained at least two admissions by P that he was the one driving. The first admission — “I went off the road” — appeared in an EMT’s pre-hospital care report. This should have been admitted into evidence because “[a] hearsay entry in a hospital record as to the happening of an injury is admissible at trial, even if not germane to diagnosis or treatment, if the entry is inconsistent with a position taken by a party at trial and there is evidence to connect the party to the entry.”

©Doctors & Their Records at Trial Benedene Cannata, 2015 A similar admission appearing in the ER record, unlike the EMT record, lacked any evidence connecting P to the entry. That admission was properly excluded.

History Portion: Inadmissible Entries

Williams v Alexander, 309 NY 283 (1955) A hospital entry as to the acts or occurrences leading to the patient's hospitalization -- such as a narration of the accident causing the injury which is not germane to diagnosis or treatment, is not admissible. The following quote explains it.

“In some instances, perhaps, the patient's explanation as to how he was hurt may be helpful to an understanding of the medical aspects of his case; it might, for instance, assist the doctors if they were to know that the injured man had been struck by an automobile… However, whether the patient was hit by car A or car B, by car A under its own power or propelled forward by car B, or whether the injuries were caused by the negligence of the defendant or of another, cannot possibly bear on diagnosis or aid in determining treatment. That being so, entries of this sort, purporting to give particulars of the accident, which serve no medical purpose, may not be regarded as having been made in the regular course of the hospital's business. … Indeed, in discussing the matter, Wigmore observed that the essential ‘Guarantee of Trust-worthiness‘ rests upon the fact that ‘the physicians and nurses themselves rely upon the record‘ and that the record is designed to be ‘relied upon in affairs of life and death.‘ (6 Wigmore, op. cit., § 1707, p. 36) Such reasoning, however, will not support the use, or justify the receipt, of a statement detailing the circumstances of the accident where they are immaterial to, and were never intended to be relied upon in, the treatment of the patient. There is no need in that case for the physician to exercise care in obtaining and recording the information or to question the version, whatever it might be, that is given to him. The particulars may be a natural subject of the doctor's curiosity, but neither the inquiry nor the response properly belongs in a record designed to reflect the regular course of the hospital's business.”

People v Andrew, 1 NY3d 546 (2003) D argued that the trial court had erred in redacting from the victim's hospital record that it was impossible to get his consent for surgery because he was too drunk. 24

©Doctors & Their Records at Trial Benedene Cannata, 2015 Implicitly recognizing that such redacted information would be relevant to treatment and diagnosis, the Court nonetheless found that redaction was proper. D had other information showing the victim’s intoxication.

1st Dept

Mercedes v Amusements of America, 160 AD2d 630 (1st Dept 1990) A hospital entry indicated that P’s injury occurred while he was intoxicated. This entry should have been excluded. Even though evidence of intoxication may be relevant to diagnosis and treatment, the statement here was inadmissible because there was no indication as to the source of information.

Senn v Scudieri, 165 AD2d 346 (1st Dept 1991) Undated, unsigned hand-printed notation on radiology report that the that “The patient is drunk and uncooperative!” was inadmissible in Dram Shop Act action under business record exception to hearsay rule. “Overwhelming evidence” indicated that the notation was not made in regular course of business.

Sanchez v MABSTOA, 170 AD2d 402 (1st Dept 1991) P claimed a bus door closed on his foot. A statement in the hospital record indicated his injuries were sustained from contact with the bumper. The statement should not have been admitted into evidence because (1) there was no evidence that P made the statement; and (2) D failed to establish that the statement was germane to diagnosis and treatment.

Quispe v Lemle & Wolff, Inc., 266 AD2d 95 (1st Dept 1999) A hospital triage report contained conflicting information as to whether P’s injuries were caused by an 8 foot fall or a jump from 8 feet. The nurse who made the entry testified that he received this information from an EMS worker and a hospital translator, both of whom were unidentified and never called as witnesses. The court found that whether P fell or jumped wasn't germane to diagnosis and treatment. D's contention that the hospital translator was P’s agent "was aptly characterized by the trial court as a ‘quantum leap’ utterly without factual support."

Rivera v City of New York, 293 AD2d 383 (1st Dept 2002) Statement by injured child's mother that the child's injuries resulted from a thrown rock was inadmissible. Mother hadn't witnessed the occurrence. Nor had D shown that the statement was germane to diagnosis and treatment.

People v Fernandez, 304 AD2d 504 (1st Dept 2003) The trial court properly redacted the complainant's medical triage sheet to exclude 25

©Doctors & Their Records at Trial Benedene Cannata, 2015 a reference to past drug use. D made no attempt to lay a proper foundation, the complainant was never given an opportunity to confirm or deny having made such a statement, it wasn’t germane to diagnosis or treatment, and it didn’t fall within any exception to the hearsay rule.

Browder v NYCH&HC, 37 AD2d 375 (1st Dept 2007) On a motion for summary judgment, a hospital record notation was inadmissible held, as its source was unknown. Thus the expert opinion based on the notation was rendered conclusory.

Beecham v New York City Transit Authority, 54 AD3d 594 (1st Dept 2008) History portion of emergency room record inadmissible as not germane to P’s diagnosis or treatment.

Grant v New York City Transit Authority, 105 AD3d 445 (1st Dept 2013) It was error to permit history portion and orthopedic surgeon’s testimony therefrom that P slipped on wet ground. Surgeon had discarded his original history notes, didn’t recognize P, had no independent recollection of the case, and only assumed that the statement came from P. There was no proper foundation for the evidence. New trial for P.

Benavides v City of New York, 115 AD3d 518 (1st Dept 2014) At issue in this case was whether P was pushed off a fence by police officer, or, as D claimed, jumped off the fence. The court held that the entries in the hospital record to the effect that P had jumped were not germane to treatment or diagnosis:

“There was simply no evidence supporting defendants' position that the medical doctors needed to know whether plaintiff jumped or was pushed from the fence in order for doctors to determine what medical testing he needed upon admission to the hospital. No medical expert provided such testimony.”

The court moreover noted that this wasn’t a case “where the conclusion is so obvious that no medical testimony is needed to lay the appropriate evidentiary foundation.” Nor were the entries admissible as admissions, for the following reason:

“Although the Lincoln Medical and Mental Health Center Admission Assessment form has a box checked that ‘patient’ is the source of the information, the particular entry on that record, “he jumped off the fence,” is not clearly a direct statement attributable to or a quote of plaintiff. The Ambulance Call Report form 26

©Doctors & Their Records at Trial Benedene Cannata, 2015 identifies “PO” or the police officer as the source of the information that plaintiff “jumped off a fence.”

Nelson v Bogopa Serv. Corp., 123 AD3d 780 (1st Dept 2014) Entries in P’s hospital record supposedly indicating that the accident didn’t occur on D’s premises were properly excluded, as they weren’t germane to diagnosis and treatment. Further, since the statements were either equivocal or consistent with P’s trial testimony, they didn’t constitute admissions.

2d Dept

Albrecht v Area Bus. Corp., 249 AD2d 253 (2d Dept 1998) Physician’s note and hospital record indicating that injured P was an unrestrained passenger were both inadmissible since the source of the information was unknown.

Cuevas v Alexander's, Inc., 23 AD3d 428 (2d Dept 2005) Statements relating to how the subject accident occurred were not germane to diagnosis and treatment and were thus inadmissible hearsay. Their erroneous admission was cause for a new trial.

Progressive Northeastern Insurance Co. v Randazzo, 24 AD3d 560 (2d Dept 2005) Information not germane to diagnosis and treatment. Also, the proponent of the evidence failed to identify the source of the information.

Berrios v TEG Management Corp., 35 AD3d 775 (2d Dept 2006) In a Labor Law case, entry indicating that P had slipped and fallen (as opposed to having fallen from a ladder) was inadmissible. D didn’t show that P was the source of the entry.

Carcamo v Stein, 53 AD3d 520 (2d Dept 2008) Statements in hospital and ambulance records constituted inadmissible hearsay as they related to the manner of the accident and were not germane to diagnosis and treatment.

Zito v City of New York, 49 AD3d 872 (2d Dept 2008) Statement contained in the history portion of P’s hospital records that the bullet entered through the front of his body should not have been admitted. It wasn’t established that the statement was germane to diagnosis or treatment.

©Doctors & Their Records at Trial Benedene Cannata, 2015 Coker v Bakkal Food, Inc., 52 AD3d 765 (2d Dept 2008) A hearsay entry as to how injury occurred would be admissible, even if not germane to diagnosis and treatment, if it is inconsistent with the position taken by a party at trial. However, there must be evidence connecting the party to the entry. As it was unclear whether P was the source of the information, the entry was inadmissible.

3d Dept

Schou v Whitely, 9 AD3d 706 (3d Dept 2004) Redaction of an unspecified statement from P’s medical records was not error, as it was not used for purposes of diagnosis.

People v Johnson, 70 AD3d 1188 (3d Dept 2010) The criminal D’s emergency room records shouldn’t have been admitted into evidence without redacting two notations that D was intoxicated. “Under the facts and circumstances of this case, since the People failed to demonstrate that the question of whether defendant was intoxicated was relevant or germane to the medical diagnosis or treatment of his broken clavicle.” Thus the reference to intoxication was inadmissible under CPLR 4518. Because D’s intoxication was the very issue to be decided by the jury, the error was not harmless. New trial for D.

4th Dept

Boucheron v Tilley, 87 AD2d 983 (4th Dept 1982) This malpractice and lack of informed consent case involved a prescription for butazolidin, which allegedly led to the development of Stevens-Johnson syndrome.

“We find no error in the court's exclusion from evidence of gratuitous opinions by physicians contained in the hospital record concerning a material factual issue: i.e., whether plaintiff's condition was causally related to the ingestion of butazolidin. The statements were offered to prove plaintiff's contentions on this issue and were not a part of the diagnosis. Nor were they necessary for plaintiff's admission to, or treatment in the hospital.”

Passino v DeRosa, 199 AD2d 1017 (4th Dept 1993) P testified at trial that she fell on D's property when she tripped on a raised portion of a walkway. But there was a statement in the hospital record that she was injured when she fell on her icy driveway. P’s treating physician was permitted to

©Doctors & Their Records at Trial Benedene Cannata, 2015 read the statement to the jury, even though he was unable to state the source of information and had no recollection whether P had made it. The court agreed with P that the statement was not relevant to diagnosis and treatment and should not have been admitted. New trial for P.

Musaid v Mercy Hosp. of Buffalo, 249 AD2d 958 (4th Dept 1998) Entries in the hospital record and incident report weren’t germane to diagnosis and treatment and thus inadmissible. The nurse’s testimony was equivocal at best with respect to what P told her. She admitted that her entry that “[P] was standing next to the examining table” is something she “imagined” P told her. The indicia of reliability required to support an admission were thus clearly absent. New trial for P.

Out-of-State Hospital Records

Joyce v Kowlcewski, 80 AD2d 27 (4th Dept 1981) A CPLR 4518 (c) certification for hospital records may be used for hospital records from other states. Here, P testified he had been treated by two physicians in his home state of Pennsylvania, neither of whom appeared to testify. P did, however, call a local neurosurgeon who had examined and treated him at the request of counsel. When the neurosurgeon attempted to testify from portions of P’s Pennsylvania hospital and X-ray records, the court sustained D ’s objection because the records in the doctor's file were not "authenticated." P’s counsel requested the hospital in Pennsylvania mail him authenticated copies of P’s medical records, which they did. P’s counsel then attempted to have them entered in evidence under CPLR 4518(c). Defense counsel objected to because they had not been obtained pursuant to a subpoena duces tecum (CPLR 2306) and the trial court sustained this "technical" objection. The records were admissible. Although 4518 (c) refers to CPLR 2306 (which lists documents, including hospital records, that may be obtained by a subpoena duces tecum) the fact that such records had been voluntarily produced rather than subpoenaed posed no bar to their admissibility. The court wrote:

“Although subdivision (c) of CPLR 4518 is silent on the point, no reason is apparent why it should not extend, as in the instant case, to similar records obtained from a sister state (Ibid). There is no question that the medical records plaintiff sought to admit into evidence were duly and properly authenticated by the custodian of such records. This is all that is required pursuant to (CPLR 4518 subd. [c]) as a prerequisite to their admissibility. Accordingly, the trial court erred in ruling that the 29

©Doctors & Their Records at Trial Benedene Cannata, 2015 proffered medical records could not be received in evidence merely because they had not been subpoenaed. Such error seriously impaired plaintiff's attempts to establish the nature and seriousness of his injuries.”

Murray v Weidenfeld, 37 AD3d 432 (2d Dept 2007) This case apparently involved records from two Wisconsin hospitals. Held: certified hospital records and medical opinions contained therein were properly admitted as they were germane to diagnosis and treatment. Moreover, P experts were entitled to rely on the facts set forth in those medical records, as they did not base their opinions on the conclusions contained in them.

Note: Now that CPLR 3122-a has been amended to include subsection (d) (effective August 11, 2014), there should be no problem getting out of state hospital or medical records into evidence. See CPLR 3122-a infra.

Hospital Bills: CPLR 4518 (b) A hospital bill is admissible and is prima facie evidence of the facts contained therein, provided it bears a certification by the head of the hospital or by a responsible employee in the comptroller’s or accounting office that the bill is correct, that each of the items was necessarily supplied, and that the amount charged is reasonable.

MRI’s X-rays, etc.

Vander Wel v Palazzo, 155 AD2d 387 (1st Dept 1989) P’s examining physician, an orthopedic surgeon, examined her six years after the claimed injury, and took x-rays. The trial court refused to allow the x-rays into evidence. This was error. The physician was there to authenticate and interpret the x-rays and to be cross- examined. Moreover, his diagnosis and prognosis were certainly relevant to the claim of permanent injury.

Lucian v Schwartz, 55 AD3d 687 (2d Dept 2008) CT scan films should not have been admitted into evidence, as they had not been properly authenticated. However, the error was harmless. The written reports interpreting the films were in evidence (apparently without objection), and a treating 30

©Doctors & Their Records at Trial Benedene Cannata, 2015 physician had testified in detail as to his review of the films during P’s hospitalization.

Dowling v 257 Associates, 235 AD2d 293 (1st Dept 1997) P had not provided D with authorizations for certain X-rays, yet sought to have the x-rays admitted into evidence. It was a proper exercise of discretion to allow them into evidence. D had received a doctor's report that explicitly identified those x-rays, plus an authorization from that doctor for P’s entire file, including the x-rays. Further, D never asked P for an authorization for the x-rays, nor did counsel ask the doctor for the x-rays.

Karaylanakis v Grommery, 141 AD2d 610 (2d Dept 1988) The Second Department recognized the failure to introduce x-rays into evidence might well constitute error, but found it was not reversible error in this case because P’s expert used the x-rays merely to confirm findings he had already made upon clinical observation.

Classen v Ashkinazy, 258 AD2d 863 (3d Dept 1999) The Third Department rejected D 's objection to the admission of a copy of an x- ray made by P’s expert. The record failed to support the contention -- made for the first time on appeal -- that the copy wasn't accurate.

CPLR 4532-a:

Rule 4532-a. Admissibility of graphic, numerical, symbolic or pictorial representations of medical or diagnostic tests.

A graphic, numerical, symbolic or pictorial representation of the results of a medical or diagnostic procedure or test is admissible in evidence provided:

(1) the name of the injured party, the date when the information constituting the graphic, numerical, symbolic or pictorial representation was taken, and such additional identifying information as is customarily inscribed by the medical practitioner or medical facility is inserted on such graphic, numerical, symbolic or pictorial representation; and

(2) (a) the representation has been previously received or examined by the party or parties against whom it is being offered; or

©Doctors & Their Records at Trial Benedene Cannata, 2015 (b) (i) at least ten days before the date of trial of the action, the party intending to offer such graphic, numerical, symbolic or pictorial representation as a proposed exhibit serves upon the party or parties against whom said proposed exhibit is to be offered, a notice of intention to offer such proposed exhibit in evidence during the trial and that the same is available for inspection; and

(ii) the notice aforesaid is accompanied by an affidavit or affirmation of such physician identifying such graphic, numerical, symbolic or pictorial representation and attesting to the identifying information inscribed thereon, attesting that the identifying information inscribed thereon is the same as is customarily inscribed by the medical practitioner or facility, and further attesting that, if called as a witness in the action, he or she would so testify.

Nothing contained in this rule, however, shall prohibit the admissibility of a graphic, numerical, symbolic or pictorial representation in evidence where otherwise admissible.

Note in particular that:

• CPLR 4532-a is no longer limited to personal injury cases;

• the only required info on the films: the name of the patient and the date taken. Any other information is subject to the facility’s customary practice;

• the place of the inspection is no longer limited to the attorney's office; and

• if the proponent of the films/pictorial representations has proof that the other side actually received or examined the films, and radiologist’s affirmation is not necessary.

Case law seems to require literal compliance with the requirements of CPLR 4532-a, the provision governing the admissibility of x-rays, MRIs, and the like. See Aguirre v Long Island Rail Road, 286 AD2d 658 (2d Dept 2001); Galuska v Arbaiza, 106 AD2d 543 (2 Dept 1984); Wierzdicki v Matthew, 8 AD3d 476 (2d Dept 2004).

Adams v Romero, 227 AD2d 292 (1st Dept 1996) The trial court did not err in excluding copies of X-rays, MRI films and CT scans because of Ds' noncompliance with CPLR 4532-a. 32

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Kovacev v Ferreira Bros Contracting, Inc., 9 AD3d 253 (1st Dept 2004) MRI films were not admissible under CPLR 4532-a, providing for self- authentication of diagnostic tests, since P admittedly failed to meet the section's requirements, or show that the MRI was admissible pursuant to the business records exception of the hearsay rule. (See CPLR 4532-a, last sentence.)

Dwight v New York City Transit Authority, 30 AD3d 270 (1st Dept 2006) The court properly excluded x-rays due to P’s failure to comply with CPLR 4532-a notice provisions.

Pardodefigueroa v Turner Construction Corp., 33 AD3d 601 (2d Dept 2006) Trial court erred by granting Ds application to preclude the admission of certain MRI films for lack of authentication. "Defendants made no showing that the films themselves -- which they had previously examined -- did not meet the conditions for self-authentication set forth in CPLR 4532-a (1) as that provision read at the time of the trial, or were not ‘otherwise admissible.’”

Clevenger v Mitnick, 38 AD3d 586 (2d Dept 2007) Trial court properly admitted the actual MRI scans and the EMG test data pursuant to CPLR 4532-a.

Wang v 161 Hudson, LLC, 60 AD3d 668 (2d Dept 2009) Given P’s failure to comply with CPLR 4532-a, the trial court should not have admitted an MRI film into evidence. This was not harmless error, since P's expert testified extensively regarding the film and displayed it to the jury.

Ewanciw v Atlas, 65 AD3d 1077 (2d Dept 2009) It was error to admit a portion of a nerve conduction study report prepared by a nontestifying doctor. The party offering the report (D) failed to establish that the nerve conduction study results constituted a “graphic, numerical, symbolic or pictorial representation of the results of a medical or diagnostic procedure or test” for admission under CPLR 4532–a. Under the circumstances however, the error was harmless.

Lost or Destroyed Records or Films

Schozer v William Penn Life Insurance Company of New York, 84 NY2d 639 (1994) The trial court committed reversible error by refusing to permit D insurer to 33

©Doctors & Their Records at Trial Benedene Cannata, 2015 establish that the x-ray film of a life insurance applicant was lost, and in ruling that unavailability of the x-ray film unconditionally precluded insurer from introducing secondary evidence of its contents (i.e., the X-ray report and testimony of the radiologist who wrote it). This was an improper interpretation of the best evidence rule. That rule does not absolutely bar the admission of secondary evidence, without permitting the party proffering it to establish an excuse for its non-production. “Loss may be established upon a showing of a diligent search in the location where the document was last known to have been kept.” Here, D proffered testimony by the records custodian that the x-ray was lost and there was no bad faith involved. "Indeed, the more important the document to the resolution of the ultimate issue in the case, ‘the stricter becomes the requirement of the evidentiary foundation (establishing loss) for the admission of secondary evidence’... In other words, the court should give careful consideration to the possible motivation for the nonproduction of the original in determining whether the foundational proof of loss was sufficient.” The Court of Appeals granted a new trial.

Randolph v Warnecke, 1 AD3d 731 (3d Dept 2003) P had in his possession certain MRI films of his cervical spine, taken before the lawsuit. Unfortunately, he lost them. This resulted in a dismissal of all claims relating to his cervical spine. The prejudice to D caused by P’s inability to produce the MRI film was substantial since the missing MRI was critical to the core issue of whether P suffered any aggravation of his preexisting injuries.

Cordero v Miracle Cab Corp., 51 AD3d 707 (2d Dept 2008) P provided D with authorizations for medical records, including MRI films. When D tried to process the authorization, the facility advised that the original MRI films had accidentally been destroyed. Supreme Court should not have precluded P from adducing any evidence relating to the findings of the MRI. Under the circumstances, P couldn’t be held responsible for a nonparty's accidental loss of the MRI films. The court noted that P was just as prejudiced by the loss of the films as D.

Chervonskaya v Bentley, 55 AD3d 650 (2d Dept 2008) In this medical malpractice case, P was compelled to return her original mammogram films to D (Doshi Diagnostics). Records or (in this case, films) created by a physician in the examination and treatment of a patient are property of the physician. The medical release forms P signed indicated that the films were being loaned to P, and that P was required to return them as soon as possible. P’s fear that the films would be lost or damaged if returned to D was deemed not reasonable.

To the same effect, see Gerson v New York Women's Medical, P.C., 249 AD2d 265 (2d Dept 1998) 34

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Medical Capital Corp. v MRI Global Imaging, Inc., 52 AD3d 482 (2d Dept 2008) A physician brought a breach of contract action against an MRI imaging company. Held: the original MRI films of physician's patients were property of the physician and his professional corporations, and not the imaging company. It didn't matter that the imaging company maintained the films. The physician was entitled to delivery of films without charge.

Castillo v Staten Island Cable, LLC, 19 M 3d 1105 (A) (Civ Ct, New York County 2008) Court would not presume that Ps were the parties responsible for the disappearance of certain MRI films or, more importantly, that the films were discarded by Ps in an effort to frustrate discovery. Ps also suffered prejudice. Ds weren't deprived of the ability to defend, and could seek an adverse inference charge at trial.

Eremina v Scparta, 120 AD3d 616 (2d Dept 2014) When Ds attempted to process authorizations for MRI films, they found that the MRI facility had gone out of business. Ds moved for to compel, preclude, or for spoliation sanctions. Recognizing that Ps weren’t responsible for this scenario, the Second Department held that Ds wouldn’t be entitled to spoliation sanctions because they failed to demonstrate that Ps lost or destroyed the MRI films, or even that the MRI films were lost or destroyed. Although the motion court “providently exercised its discretion” by compelling Ps to make the MRI films available for duplication or suffer preclusion, it should have afforded Ps an opportunity to furnish affidavits swearing that the MRI films (or copies) of the films “were not in their possession or control or the possession and control of their counsel, treating physicians, experts, or anyone under their control.”

Spoliation

1st Dept Herrera v Matlin, 303 AD2d 198 (1st Dept 2003) The trial court granted P’s motion to strike D ’s answer for spoliation of evidence.

“It appears that when defendant's decedent retired approximately a year after his last treatment of plaintiff, he simply left all of his patient records, including X rays of plaintiff's injured wrist and the records of his year-long treatment of her, in a filing cabinet in the medical office where he worked, without arranging for their transfer to another doctor 35

©Doctors & Their Records at Trial Benedene Cannata, 2015 or return to his patients. Attempts by plaintiff to procure these records from the medical office, a nonparty professional corporation, have been, as the IAS court put it, "predictably" unsuccessful. This loss of evidence, attributable to defendant's decedent's professional misconduct in failing to maintain a patient's records for at least six years (Education Law 6530(32); 8 NYCRR 29.2(a)(3) ), deprives plaintiff of any means of establishing a prima facie case, is no less prejudicial because of its inadvertence and warrants the striking of defendant's answer.”

Myers v Sadlor 16 AD3d 257 (1st Dept 2005) D was denied a spoliation charge with respect to an MRI and appealed. The First Department affirmed.

“The original MRI of plaintiff's cervical spine shortly after the accident was inadvertently ‘corrupted’ and destroyed by the medical imaging facility. Spoliation sanctions were denied because defendant failed to establish that the unavailability of the MRI film resulted from any intentional or willful act, or would impair his ability to defend against the claim of serious injury….. Moreover, defendant has offered no plausible reason to regard the actual MRI film as "crucial" evidence when an abundance of other relevant medical evidence remains available to the parties for the period in question.”

Diaz v Rose, 40 AD3d 429 (1st Dept 2007) D hospital disposed of a foreign object removed from P’s shoulder during surgery. The court acknowledged that this would make it more difficult for P to establish whether the object was a suture anchor, as opposed to a drill tip improperly left behind. Held: P’s motion to strike the answer on spoliation grounds was properly denied. The disposal was held neither intentional nor negligent and there was no indication that it was done with knowledge of its potential evidentiary value or P’s need for it. Further, P failed to establish that the foreign body constituted crucial evidence, as there was no medical evidence supporting the claim that her infection was caused by a foreign body as opposed to bacteria.

2d Dept

Baglio v St. John's Queens Hosp. 303 AD2d 341(2d Dept 2003) In an obstetrical malpractice case, the hospital's negligent loss of fetal monitoring strips warranted striking its answer.

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“It is well settled that when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading…. A pleading may be stricken ‘even if the evidence was destroyed before the spoliator became a party, provided it was on notice that the evidence might be needed for future litigation.’"

Fetal monitoring strips are essential to determine fetal well-being and would give fairly conclusive evidence as to the presence or absence of fetal distress. They were thus necessary in the case to evaluate the physicians’ and staff’s obstetrical management. “Their loss deprive(d) P of the means of proving her medical malpractice claim against the hospital.”

Bjorke v Rubenstein, 38 AD3d 580 (2d Dept 2007) Ds failed to show that the loss of original sonogram and mammogram films -- which she had borrowed from D -- deprived them of the evidence they needed to establish their defense. Dismissing the case was thus an inappropriate sanction.

Denoyelles v Gallagher, 40 AD3d 1027 (2d Dept 2007) Ps, accusing Ds of altering computerized treatment records, moved to strike Ds’ answer. The motion was properly denied. P failed to demonstrate that the "modification" of the computer records was done in bad faith, or that it rendered them unable to prove their claims.

Geffner v North Shore University Hosp., 57 AD3d 839 (2d Dept 2008) D hospital discarded specimens, samples, blood, bodily fluids, and other physical matter of P’s decedent, which samples it had been directed to preserve pursuant to two temporary restraining orders. No spoliation sanction. P failed to show that D hospital acted willfully and contumaciously, or that the failure to preserve the specimens deprived P of the means to prove her case.

Rodman v Ardsley Radiology, 103 AD3d 871 (2d Dept 2013) P admitted that he signed out original ultrasound films and neglected to return them. The result was an adverse inference charge.

3d Dept

Weiss v Bellevue Maternity Hosp., 121 AD3d 1480 (3d Dept 2014) 10 NYCRR 405.10[a][4] requires hospitals to maintain adult records for six years 37

©Doctors & Their Records at Trial Benedene Cannata, 2015 following discharge and infant records until the child turns 21. That’s exactly what D hospital did in this obstetrical malpractice case. When they discarded the mother’s records, the labor and delivery records were included. Finding that there was no indication of malice or bad faith in discarding the records in accordance with hospital policy, Supreme Court properly declined to strike D’s answer. P didn’t establish that the unavailability of the records fatally compromised their ability to prosecute the action. As the court noted, P had access to the fetal heart rate monitoring strips and a biophysical profile containing critical information, and of course could depose the obstetrician and hospital personnel.

4th Dept

Osinski v Taefi, 13 AD3d 1205 (4th Dept 2004) This was an obstetrical malpractice action involving injuries due to a premature birth. P sought a spoliation charge for loss of the physician’s original records. The physician testified that he had transferred the original records to Children's Hospital when it purchased his practice in 1996. P failed to establish that original records were destroyed, much less that they were destroyed with fraudulent intent, or that there was no reasonable explanation for physician's failure to produce records. Thus P s were not entitled to a jury instruction on spoliation of evidence.

Wetzler v Sisters of Charity Hospital, 17 AD3d 1088 ( 4th Dept 2005) At the trial of this obstetrical malpractice case, P s moved at the close of the evidence for a directed verdict on liability pursuant to CPLR 4401. Supreme Court struck the answers of the hospital and a physician as a sanction for the spoliation of evidence, granted Ps' motion for a directed verdict on liability as a result of that sanction, and submitted the case to the jury on the issue of damages. The jury returned a verdict of $7.5 million. The missing evidence was the second of three x-rays taken during the baby’s first three hours of care, which were never produced, either in response to discovery demands or in response to the trial subpoena. The Fourth Department reversed and granted a new trial. First, it was never established that the spoliation of evidence was willful or contumacious, a required showing for the drastic remedy of striking a pleading. Second, when spoliation is negligent, as opposed to deliberate, and the missing evidence does not deprive the moving party of the ability to establish his or her case, a less drastic sanction is appropriate.

Lisa E.G. v Genesee Hospital, 48 AD3d 1064 (4th Dept 2008) D lost unspecified evidence in an OB malpractice case. P failed to establish that the evidence allegedly lost or destroyed ever existed. No spoliation sanction. 38

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Johnson v Ayyub, 115 AD3d 1191 (4th Dept 2014) In this medical malpractice case, certain radiology films went missing. They had been included in a packet of the decedent’s medical records previously picked up by P and returned to D hospital. D physician moved to strike complaint as against him due to the loss of these films. Noting that there was no evidence of intentional destruction and the loss didn’t fatally compromise D’s ability to defend himself, the harsh sanction of dismissal wasn’t warranted. The trial court aptly chose to sanction the party responsible for the loss with an adverse inference charge. Apparently a hearing would have to be held to determine who that responsible party might be.

Altered Records

Lipschitz v Stein, 10 AD3d 634 (2d Dept 2004) In this medical malpractice case, the time P arrived at the surgeon’s office the day after cataract surgery was of crucial importance. The surgeon’s receptionist testified regarding P’s time of arrival based solely on the order of the names in her patient log, (which was never produced or introduced in evidence notwithstanding that it had been subpoenaed). At the charge conference, the defense admitted that the patient log had been altered. This (a) meant that the receptionist’s testimony violated the best evidence rule; and (b) required a jury instruction that fraudulent purposes could be inferred from the destruction of evidence. A new trial was granted.

Redaction

Doe v G.J. Adams Plumbing, Inc. 8 Misc 3d 610 (Sup Ct, Oneida County, 2005, Julian, J) P , injured in an ATV accident, sought a redaction of his/her medical records to eliminate reference to being diagnosed as HIV positive. In a lengthy decision discussing the protection of HIV positive parties and D’s right to defend, and recognizing that the HIV status may be relevant to life expectancy, the court ordered a hearing under CPLR 2218 and Public Health Law 2785 to determine if D was entitled to the disclosure. The following quote is instructive.

“The history contains no mention of a legislative intent to restrict the traditionally expansive access which Defendants have to a Plaintiff's

©Doctors & Their Records at Trial Benedene Cannata, 2015 medical records in a personal injury case. In view of these difficulties, the Court has decided to proceed one step at a time, guarding Plaintiff's privacy as closely as possible, while acknowledging the rights of defendants. It is possible that the procedure set forth by the Court will demonstrate no real medical dispute by the parties regarding life expectancy and that a Stipulation regarding life expectancy is achievable.”

Osinski v Taefi, 13 AD3d 1205 (4th Dept 2004) This was an obstetrical malpractice action involving injuries due to a premature birth. D was the obstetrician-gynecologist who treated the mother at an appointment the day before the birth. Prior to trial, Supreme Court dismissed the mother’s claims, “thereby rendering legally irrelevant references to her postpartum care and treatment." The court did not abuse its discretion in ordering redaction of references to P’s postpartum care and treatment and in prohibiting P s' attorney from commenting in his summation on notes in the hospital record concerning P’s condition after the delivery, even though the record was in evidence and those entries had not been redacted.

Ginsberg by Ginsberg v North Shore Hosp., 213 AD2d 592 (2d Dept 1995) One of P’s arguments on appeal was that the trial court improperly redacted certain portions of records from institutions in which she had been a patient, by removing mention of the diagnosis. The court held this was proper under the circumstances:

“While it is true that, ordinarily, physicians' office records or hospital records are admissible to the extent that they are germane to diagnosis and treatment, including medical opinions…, where the source of the information on the hospital or doctor's record is unknown, the record is inadmissible…. Here, the references to the diagnoses appear to have come from other unknown charts or records, and may have been part of the history relayed by P herself or her counsel. As such, the trial court properly redacted these references.”

©Doctors & Their Records at Trial Benedene Cannata, 2015 Before the Trial

Subpoena Medical Records

CPLR 3122-a This statute sets forth a procedure which, if followed, dispenses with the need to call a witness into court to give business record foundation testimony. Subsection (a) states that it applies to matter obtainable via subpoena under CPLR 3120, permitting discovery and production of documents and things. It can be used for the records of doctors, private clinics, therapists and other health care providers. Note that in 2014, the statute was amended to add subsection (d), which reads as follows:

“(d) The certification authorized by this rule may be used as to business records produced by non-parties whether or not pursuant to a subpoena so long as the custodian or other qualified witness attests to the facts set forth in paragraphs one, two and four of subdivision (a) of this rule.”

This is a handy addition to the statute because a party may now obtain a certification by an out of state health care provider, saving the party the ordeal of having to obtain an open commission just to depose an authenticating witness.

The procedure, by statute, is to be done at least 30 days before trial. But it would seem advisable, if you miss the cut-off by a few days, to follow this procedure anyway. A trial date may be adjourned, so your actions may ultimately be timely. And even if you are a few days short, there is still a chance the judge will overrule an objection on the grounds of untimeliness. The judge will look to what is fair under the circumstances. The worst that can happen is that a records custodian has to come to court to testify.

The Following procedure is suggested by the author of these materials:

1) Prepare a HIPAA-compliant authorization as to each health-care provider, whether it was signed by the client or an attorney at your office in conjunction with an executed durable power of attorney.

2) Prepare the subpoena duces tecum. 41

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3) Prepare a letter to the health-care provider, attaching: • the subpoena; and • HIPAA authorization with durable power of attorney (if applicable); and • Form affidavit or affirmation to fill out and sign.

4) Prepare a “3122-a Notice” listing all the people/entities you are serving subpoenas on. Nothing in the statute says you have to wait until you know the records are in the courthouse before serving this.

5) Prepare the waiver and authorization form that allows the defense attorneys to inspect the medical records at the courthouse.

6) Send to all counsel a cover letter enclosing: • the 3122-a Notice; • copies of the subpoenas; • copies of the authorizations; • the waiver and authorization form; and • the durable power of attorney if applicable.

It is best to staple the authorization to the “matching” subpoena. Only one durable power of attorney (if applicable) should be sent. .

7) Follow-Up. Do what is necessary to make sure the records are at the courthouse and the proper certification is with it. This usually means a personal visit to the records room.

DeVito v Feliciano, 84 AD3d 645 (1st Dept 2011) rev'd on other grounds 22 NY3d 159 (2013) Held, citing CPLR 3122–a, the trial court didn’t err in excluding medical records that: (a) weren’t properly certified; and (b) never given to adversary for inspection prior to trial.

Pleeter v Cole, 88 AD3d 538 (1st Dept 2011) The admission into evidence of the medical records of treating doctor, whose response to a subpoena duces tecum was accompanied by an unsworn letter bearing his signature and purporting to be a certification of the records, wasn’t prejudicial to P, was cumulative, and was at most harmless error.

©Doctors & Their Records at Trial Benedene Cannata, 2015 Giordano v New Rochelle Mun. Hous. Auth., 84 AD3d 729 (2d Dept 2011) Although this case has to do with discovery, it’s worth noting here. P sought discovery from D’s examining physicians and psychologists of: (1) the medical records they relied on; (2) copies of P’s records they reviewed; (3) writings and other recordings created by during his examinations; (4) test results, scored results, measurements, any scales or other documents necessary to interpret the results; and (5) the examining doctors’ notes. Held: This information was not discoverable because it was privileged as material prepared for litigation. failed to demonstrate that they had a substantial need for the materials, or that they were unable, without undue hardship, to obtain the substantial equivalent of the materials by other means.

D'Andraia v Pesce, 103 AD3d 770 (2d Dept 2013) D argued that the medical records of Dr. L, who had treated P’s decedent in Florida, couldn’t be certified under CPLR 3122–a, which, at the time, only applied to records obtained by subpoena (and a subpoena cannot be served out of state). Thus, D claimed that the certification by Dr. L was “unreliable.” The court found that the certification “nonetheless” comported with CPLR 3122– a, and ‘[t]he decision to allow the certified business records to be admitted without a live testimonial witness based on a proper certification is ultimately within the court's discretion.” That discretion was not improvidently exercised here.”

Subpoena Hospital Records

CPLR 2306 (a) This section details the requirements for a subpoena on a hospital. Read this rule in conjunction with CPLR 4518(c) (supra). Note: a subpoena for hospital records must be served on at least three days’ notice. The section reads:

(a) Transcript or reproduction. Where a subpoena duces tecum is served upon a hospital… requiring the production of records relating to the condition or treatment of a patient, a transcript or a full-sized legible reproduction, certified as correct by the superintendent or head of the hospital…, may be produced unless otherwise ordered by a court. Such a subpoena shall be served at least three days before the time fixed for the production of the records unless otherwise ordered by a court.

©Doctors & Their Records at Trial Benedene Cannata, 2015 (b) Delivery to clerk. Where a court has designated a clerk to receive records described in subdivision (a), delivery may be made to him at or before the time fixed for their production. The clerk shall give a receipt for the records and notify the person subpoenaed when they are no longer required. The records shall be delivered in a sealed envelope indicating the title of the action, the date fixed for production and the name and address of the attorney appearing on the subpoena. They shall be available for inspection pursuant to the rules or order of the court.

Weinberg v Remyco, Inc., 9 AD3d 425 (2d Dept 2004) This was a trip and fall case. At a conference before the damages portion of the trial, P’s counsel disclosed that the pertinent hospital records had been sent to her office rather than to the courthouse as specified in the subpoena. P’s counsel neither delivered these records to the courthouse nor informed D s that she had them, and although she produced her copy at the conference, defense counsel noticed that these records were more extensive than those he had received via a medical authorization. In fact, these records indicated that P fell down the stairs in a way that was in accord with the version of the accident given by one of D’s employees. The result was a mistrial of the liability portion of the case.

Serve Notice to Introduce X-rays, MRI films, etc.

CPLR 4532-a Discussed above.

©Doctors & Their Records at Trial Benedene Cannata, 2015 Serve Medical Exchange

CPLR 3121 and 22 NYCRR 202.17

Two of the most important rules to comply with for the personal injury lawyer. An examining physician is obligated by law to set forth in detail all his findings and conclusions.

CPLR 3121 provides:

“A copy of a detailed written report of the examining physician setting out his findings and conclusions shall be delivered by the party seeking the examination ….” (Emphasis added.)

22 NYCRR 202.17 (aka the “medical exchange rule” is a lengthy rule that must be read carefully. Those sections of the rule pertaining to the issues covered by these materials are as follows:

Exchange of medical reports in personal injury and wrongful death actions

Except where the court otherwise directs, in all actions in which recovery is sought for personal injuries, disability or death, physical examinations and the exchange of medical information shall be governed by the provisions hereinafter set forth.

(a) At any time after joinder of issue and service of a bill of particulars, the party to be examined or any other party may serve on all other parties a notice fixing the time and place of examination. Unless otherwise stipulated, the examination shall be held not less than 30 nor more than 60 days after service of the notice. If served by any party other than the party to be examined, the notice shall name the examining medical provider or providers. If the notice is served by the party to be examined, the examining parties shall, within five days of receipt thereof, submit to the party to be examined the name of the medical providers who will conduct the examination. Any party may move to modify or vacate the notice fixing the time and place of examination or the notice naming the examining medical providers, within 10 days of the receipt thereof, on the grounds that the time or place fixed or the medical provider named is objectionable, or that the nature of the action is such that the interests of justice will not be served by an examination, exchange of medical reports or delivery of authorizations. 45

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(b) At least 20 days before the date of such examination, or on such other date as the court may direct, the party to be examined shall serve upon and deliver to all other parties the following, which may be used by the examining medical provider:

(1) copies of the medical reports of those medical providers who have previously treated or examined the party seeking recovery. These shall include a recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those X-ray and technicians reports which will be offered at the trial, including a description of the injuries, a diagnosis and a prognosis. Medical reports may consist of completed medical provider, workers' compensation, or insurance forms that provide the information required by this paragraph; (2) duly executed and acknowledged written authorizations permitting all parties to obtain and make copies of all hospital records and such other records, including X-ray and technicians' reports, as may be referred to and identified in the reports of those medical providers who have treated or examined the party seeking recovery.

(e) Parties relying solely on hospital records may so certify in lieu of serving medical providers' reports.

(g) In the event that the party examined intends at the trial to offer evidence of further or additional injuries or conditions, nonexistent or not known to exist at the time of service of the original medical reports, such party shall, within 30 days after the discovery thereof, and not later than 30 days before trial, serve upon all parties a supplemental medical report complying with the requirements of paragraph (b)(1) of this section, and shall specify a time, not more than 10 days thereafter, and a place at which a further examination may be had. Further authorizations to examine and make copies of additional hospital records, other records, X-ray or other technicians' reports as provided in paragraph (b)(2) of this section must also be delivered with the medical reports. Copies of the reports of the examining medical providers, complying with the requirements of subdivision (c) of this section, shall be served within 10 days after completion of such further examination. If any party desires at the trial to offer the testimony of additional treating or examining medical providers, other than whose medical reports have been previously exchanged, the medical reports of such medical providers,

©Doctors & Their Records at Trial Benedene Cannata, 2015 complying with the requirements of paragraph (b)(1) of this section, shall be served upon all parties at least 30 days before trial.

(h) Unless an order to the contrary is made, or unless the judge presiding at the trial in the interests of justice and upon a showing of good cause shall hold otherwise, the party seeking to recover damages shall be precluded at the trial from offering in evidence any part of the hospital records and all other records, including autopsy or post mortem records, X-ray reports or reports of other technicians, not made available pursuant to this rule, and no party shall be permitted to offer any evidence of injuries or conditions not set forth or put in issue in the respective medical reports previously exchanged, nor will the court hear the testimony of any treating or examining medical providers whose medical reports have not been served as provided by this rule.

Hoenig v Westphal, 52 NY2d 605 (1981) The medical exchange rule was enacted to broaden rather than limit discovery. The entirety of the medical report, for whomever it was prepared, is unprivileged. As the Court of Appeals noted:

“Contrary to plaintiffs' argument, ( 202.17) broadens rather than restricts discovery. Read in context, the exchange provision relates to reports of examinations conducted pursuant to (CPLR 3121) subdivision (a) or otherwise specifically for the litigation. Since such reports, for whomever prepared, could be classified as material prepared for litigation and thus exempt from disclosure under CPLR 3101 subd. (d), 3121 subd. (b) gives P or another party a right to discovery not otherwise available. Subdivision (b) quite simply makes discoverable from a person requesting an examination material otherwise not discoverable. It cannot be read to restrict the right to discover material generally subject to disclosure.” (Emphasis added.)

Hamilton v Miller, 23 NY3d 592 (2014) Although this case doesn’t concern medical evidence at trial, it’s included here because the Court of Appeals addresses the Medical Exchange Rule (22 NYCRR 202.17), which often comes into play at trial. Ps in 2 lead paint cases submitted bill of particulars that alleged long lists of "boilerplate" lead paint injuries. Ds served notices for Ps to be physically examined. After motion practice, Supreme Court directed Ps to (a) produce medical reports detailing a diagnosis of each injury alleged in the bill of particulars and causally relating those injuries to exposure to lead paint, and do so before the defense physical 47

©Doctors & Their Records at Trial Benedene Cannata, 2015 P was also directed to amend the bill of particulars to pare down the list to injuries actually sustained. The Court of Appeals held: • P is not required to provide narrative reports for claimed injuries where there is no or very limited, medical evidence. • Where med records of a claimed condition exist, P must produce reports as required under 202.17(b)(1). • If the physician hasn't written a report, P must have him/her do so to comply with the mandates of the rule. • A report under 202.17(b)(1) only requires a recitation of injuries, diagnosis and prognosis. It does not require, as urged by Ds, a finding of causation. Issues of causation, should be addressed through expert disclosure under CPLR 3101(d).

1st Dept

Washington v 550 West 158th Street Realty Corp., 137 AD2d 426 (1st Dept 1988) The trial court allowed D’s examining doctor to testify without P having previously received the report and without permitting P to examine the entire report. The First Department found this to be reversible error, stating:

“The witness had examined plaintiff previously on behalf of other defendants in a separate action brought by plaintiff arising out of an event that occurred sometime prior to the incident that gave rise to this lawsuit. The examination was conducted, however, after the events with which we are concerned. The testimony of this witness was clearly important. It not only rebutted as to damages the testimony of plaintiff's expert, but in addition, in that part of his testimony describing the symptoms claimed by plaintiff and her responses to his questions, the witness gave testimony that could have been viewed by the jury as severely impairing plaintiff's credibility.”

The First Department noted that under the circumstances, it was “particularly important that plaintiff's counsel be permitted to examine carefully the doctor's report prior to cross-examination.”

©Doctors & Their Records at Trial Benedene Cannata, 2015 “Preclusion is an appropriate remedy for violation of the rules regarding exchange of medical information, especially where, as here, the proffered evidence would result in surprise (22 NYCRR 202.17 (8); Jurgen v Linesburgh, 159 AD2d 689, 690-691).”

Grassi v Carolina Barbeque, Inc., 254 AD2d 38 (1st Dept 1998) Failure to comply with the rule results in the preclusion of the medical witness at trial.

Dilena v Irving Reisman Irrevocable Trust, 262 AD2d 256 (1st Dept 1999) D served a purported medical exchange which was really nothing more than a cover letter referring to an enclosed “copy of the recorded history and examination.” Ds were sanctioned $1000. The only reason D’s witness was allowed to testify was because there was still time, before trial, for the complete exchange to be made. Here the deficiency was patently apparent, alerting P of the need for a motion.

Tonaj v ABC Carpet Co., Inc., 43 AD3d 337 (1st Dept 2007) D moved, based on CPLR 3121 and 22 NYCRR 202.17, to preclude a treating neurologist’s opinion testimony causally linking injury to the accident. The motion was properly denied, “since both provisions are inapplicable.” Thus, in a sentence, the decision seems to belie the notion that plaintiffs are required to exchange narrative reports from their treating physicians. Note: This case has not been cited elsewhere for this proposition.

Banks v City of New York, 92 AD3d 591 (1st Dept 2012) P’s treating orthopedic surgeon was properly permitted to testify as to the possible need for future knee replacement surgery, despite P's noncompliance with 22 NYCRR 202.17(g).

2d Dept

Manoni v Giordano, 102 AD2d 846 (2d Dept 1984) The court's erroneous refusal to preclude is grounds for a new trial. This case was “remitted for a new trial on the issue of damages only because plaintiffs violated the exchange of medical information rules of this court.”

Pierson v Yourish, 122 AD2d 202 (2d Dept 1986) A party will not be excused from compliance with the medical exchange rule by claiming they do not have the report, or that the doctor never produced a report.

©Doctors & Their Records at Trial Benedene Cannata, 2015 Klombers v Lefkowitz, 131 AD2d 815 (2d Dept 1987) Trial court properly permitted P’s physician to testify notwithstanding any perceived noncompliance with the medical exchange rule. D failed to show prejudice.

Lombardi v Wlazlo, 170 AD2d 653 (2d Dept 1991) Supreme Court properly denied D's motion to compel P to produce x-rays, CAT scans and MRI films to his physician's office. Having supplied Ds with authorizations to obtain these items, P fully satisfied the requirements of CPLR 3120 and 22 NYCRR 202.17.

Diamantstein v Friedman, 199 AD2d 458 (2d Dept 1993) NYCRR 202.17, the medical exchange rule, is a "shall statute." As stated in this case: “The rule in question requires that in cases where a party's physical condition is in issue, and there is a request to examine that party, the party being examined and the examining party must exchange medical reports detailing the injuries and conditions found, or their respective physicians are barred from testifying at the trial.” ( Emphasis added.)

Berson v Chowdhury, 251 AD2d 278 (2d Dept 1998) A $2,092,000 judgment was reversed and a new trial granted as to damages, because P failed to turn over the report of his treating physician pursuant to 22 NYCRR 202.17(g), and failed to make the requisite showing of good cause for the admission of this physician's testimony.

Padovani v Miller, 8 AD3d 251 (2d Dept 2004) Pretrial, the IAS judge properly denied Ds’ motion to compel P to disclose copies of medical reports of any medical providers who treated or examined P. Review of the record on appeal reveals that before proceeding with their defense physical, Ds were insisting on the production of narrative reports from P’s doctors, although none had yet been created. They had however, received medical authorizations and complete medical files of the physicians, the surgical reports, and they had deposed P.

Karwacki v Astoria Medical Anesthesia, 23 AD3d 438 (2d Dept 2005) P never provided defense counsel with either a copy of his medical records or an authorization to obtain his medical records from a particular treating physician. He shouldn’t have been allowed submit evidence of past medical services provided by that doctor.

Daniels v Armstrong, 42 AD3d 558 (2d Dept 2007) P wasn’t required to serve report of a medical expert with whom P had consulted.

©Doctors & Their Records at Trial Benedene Cannata, 2015 P established the report had been prepared in anticipation of litigation and D failed to show substantial need.

Swezey v Montague Rehab & Pain Mgmt., P.C., 84 AD3d 779 (2d Dept 2011) The trial court providently exercised its discretion in precluding P’s treating physician, her only expert, from testifying at trial because P failed to serve the physician's medical report upon D and did not demonstrate good cause for the admission of his testimony (citing 22 NYCRR 202.17[g], [h].) Because P couldn’t make a prima facie case without her expert, the case was dismissed. Harsh result.

3d Dept

Jessmer v Martin, 46 AD3d 1059 (3d Dept 2007) A month before trial and just as the testimony of Jessmer's treating physician was about to be videotaped, P served D with a previously undisclosed medical report and a supplemental bill of particulars, both of which D rejected. The trial judge however, adjourned the trial and allow D to conduct additional discovery at P’s expense. Held: given that the trial was adjourned and additional discovery permitted, the trial court properly excused the untimeliness of the report. “Clearly, the regulations do not compel the court to preclude the medical report where, as in this case, there was no prejudice to defendants and ‘an order to the contrary (was) made’ (22 NYCRR 202.17 [h])).”

Erena v Colavita Pasta & Olive Oil Corp., 199 AD2d 729 (3d Dept 1993) A party will not be excused from compliance with the medical exchange rule by claiming that the physician is not cooperating in providing it.

Chase v OHM, LLC, 75 AD3d 1031 (3d Dept 2010) Despite the absence of a narrative report, the trial court properly allowed P's treating physician to testify as to prognosis and permanency of P's injuries. There could be no claim of surprise or prejudice since the doctors testimony related only to the consequences and permanency of the injuries that were identified in the previously-disclosed medical records, and for which D's expert provided similar testimony.

4th Dept

McClain v Lockport Memorial Hospital, 236 AD2d 864 (4th Dept 1997) lv den 89 NY2d 817 (1998) This case involved failure to diagnose meningitis in a child. The trial court acted

©Doctors & Their Records at Trial Benedene Cannata, 2015 within its discretion in excluding the testimony of P’s expert concerning his physical examination of P’s daughter, since P’s counsel had failed to serve the report of the examination, as required by the medical exchange rule.

Connors v Sowa, 251 AD2d 989 (4th Dept 1998) “Supreme Court properly exercised its discretion "in the interests of justice and upon a showing of good cause" 11 NYCRR 202.17 (h) )(sic) in allowing P's treating physician to testify despite P's failure to provide defendants with a medical report from him. Ds had been provided with the report of plaintiff's treating physician to the no- fault insurance carrier, as well as his medical records and the records of all other physicians upon which he relied. D conducted two physical examinations of P and didn’t complain until trial about the failure to provide the report.”

Davidson v Steer/Peanut Gallery, 277 AD2d 965 (4th Dept 2000) D moved to preclude P from offering medical testimony at trial based on P’s failure to provide reports of his treating physicians.

“Supreme Court erred in determining that plaintiff complied with the disclosure requirements of 22 NYCRR 202.17(h) by providing defendant with authorizations for certain medical records. Although plaintiff responded to defendant's discovery demand by asserting that he did not have reports from physicians who examined him, he is not relieved of the obligation to ensure that the reports of physicians who examined him in connection with the litigation are prepared, and to provide them to defendant.”

Thus, it was not enough that P provided medical authorizations – he was obliged to secure and serve medical reports.

Burns v McCabe, 17 AD3d 1111 (4th Dept 2005) Precluding affidavit and reports of minor child's chiropractor, not just at trial, but also in opposition to Ds' summary judgment motion, was not an abuse of discretion in this auto accident case. P’s counsel didn’t serve the reports until later than 30 days prior to trial, and did not make any showing of good cause to allow evidence at trial in the interests of justice.

Supreme Court Mendola v Richmond OB/GYN Associates , 191 M 2d 699 (Sup Ct, Richmond County, 2002 Giacobbe, J.) On the second day of trial in this malpractice action, D made an oral application to preclude the proposed medical testimony of P’s treating physicians on the ground that

©Doctors & Their Records at Trial Benedene Cannata, 2015 P failed to provide their medical reports per the medical exchange rule. P explained that no reports were provided because the doctors never prepared any. Held: The motion to preclude should have made before trial. Ds knew there were no reports, and the court rules anticipate that “normally, a defect in compliance should be addressed at the calendar stage of litigation.” P’s failure to provide medical reports wasn’t willful or calculated to put D at a disadvantage. Nor could D claim surprise or prejudice, having deposed P and having reviewed the medical records. However, to alleviate unfair prejudice, the court limited the scope of doctors’ testimony to matters set forth in the records.

Comunale ex rel. Comunale v Sealand Contractors Corp., 2 Misc 3d 672 (Sup Ct, Monroe County, 2004, Lunn, J.) P moved to compel D to produce the report of the physician who was retained by D as a consultant and had conducted a physical on D’s behalf. It was not stated that the doctor would testify at trial, nor that he had even prepared a report.

“Consonant with the purposes of discovery and the notion that trials should not be conducted by ambush, defendants who seek to invoke their right to a medical examination of plaintiff should not have the option of not providing plaintiff with a report of the IME simply by designating the doctor as a consultant or not having the doctor prepare a written report. Otherwise, a defendant could conduct an examination which is favorable to plaintiff and not produce it, thereby prejudicing plaintiff and simultaneously undermining the truth seeking function of a trial.”

D was directed to obtain a detailed written report of the doctor’s findings and conclusions on examination of P and to serve it pursuant to the medical exchange rule.

Untimely service of medical report leads to preclusion

Cirello v Virgues, 156 AD2d 417 (2d Dept 1989) Since P didn’t show good cause for failing to furnish a medical report of an examination that occurred shortly before trial, the trial court properly struck the expert's testimony concerning the examination.

Mercado v Trabman, 164 Misc 2d 339 (App Term 1st Dept 1995) Affirming preclusion for failure to comply with medical exchange rules, the court wrote: …admission of the experts' testimony would necessarily cause prejudice 53

©Doctors & Their Records at Trial Benedene Cannata, 2015 to defendant, since … the conclusions reached in the experts' belatedly exchanged reports, particularly those set out in the report of Dr. Mason, were "very surpris(ing)" and placed plaintiff's "injuries and damages in a different light."

Untimely service of medical report excused

Jessmer v Martin, 46 AD3d 1059 (3d Dept 2007) No abuse of discretion to excuse untimeliness of treating physician’s medical report: trial adjourned, additional discovery permitted.

Proia v Ciszewski, 231 AD2d 871 (4th Dept 1996) Fourteen-day delay in serving report of defense physical exam excused. D showed good cause and P wasn’t prejudiced.

Supplemental report served or updated examination conducted shortly before trial

Sometimes it’s inevitable. The case has been on the calendar for a long time, and P’s attorney thinks it best to get an updated examination and/or report on P’s condition. Will the physician be permitted to testify as to the contents of a supplemental report served just before trial? Is a supplemental report even necessary?

1st Dept

Rivera v City of New York, 107 AD2d 331 (1st Dept 1985) P called a surgeon to “to interpret the hospital records which were in evidence.” The surgeon opined as to the permanency of P’s knee injury. It came to light that the surgeon had examined P 2 days before the trial and taken his own x-rays. However, when asked whether any portion of his opinions had been based on his own exam and x-rays, he stated that they only confirmed the opinion he had formed from reading the hospital record. He also said that his opinions would have been the same, but that he was “much happier to give them after the examination.” D moved to strike the testimony due to P’s failure to furnish the physician's records as required by medical exchange rule. The court held that the opinion was properly allowed, since it had been based on the physician's reading of the hospital records, as opposed to his own physical exam 54

©Doctors & Their Records at Trial Benedene Cannata, 2015 and the x-rays he had taken during that exam two days before the trial. The hospital records clearly documented the knee injury, and the judge instructed the jury that the physician had stated his opinion was based solely on hospital record.

McDougald v Garber, 135 AD2d 80 (1st Dept 1988) mod. on other grounds 73 NY2d 246 (1989) This case is famous for its pronouncements on the loss of enjoyment of life element of damages. (73 NY2d 246 [1989]). But also at issue was the eve-of-trial service of a supplemental medical report of a physician who examined the semi- comatose patient. Ds objected as to timeliness, but the court properly allowed the report. The First Department wrote:

"The ‘interest of justice and good cause’ requirement is concerned less with the excuse offered for the failure to timely serve the report that it is with the party's need for the medical proof, the availability of alternate sources and the adverse party's preparedness to cross-examine with respect to the evidence based on a newly furnished report. … Here, Defendants' claim of surprise is considerably weakened by the hospital records, which are replete with nurses' notes as to the patient's responsiveness. While plaintiff may have been technically in violation of the rule, Defendants had almost 3 weeks after the receipt of the report to prepare for Dr. Kaplan's cross-examination. They are unable to point to any prejudice due to the delay.”

Shehata v Sushiden American Inc, 190 AD2d 620 (1st Dept 1993) The medical exchange rule, 22 NYCRR 202.17 (h), does not preclude a medical witness from "detail(ing) the functional consequences of previously reported injuries or conditions" in a report served just prior to trial. The report in this case included observations, such as P’s inability to climb stairs or write for any length of time. This did not constitute a prognosis, nor set forth new "injuries or conditions."

Taylor v Daniels, 244 AD2d 176 (1st Dept 1997) “Nor is there merit to defendant's claim that the court improperly allowed plaintiff’s medical witness to testify about possible future surgery without defendant ever having been advised of that possibility prior to trial, in violation of 22 NYCRR 202.17(h). That rule does not preclude a medical witness from "detail(ing) the functional consequences of previously reported injuries or conditions" (Shehata v Sushiden Am., 190 AD2d 620 ). Here, the witness clearly was not advancing any new injury or condition, but instead merely relating a conclusion that could have been reasonably anticipated from the injuries that were fully disclosed to defendant. Significantly, plaintiff's bill of particulars expressly stated that she might have to undergo future surgery.” 55

©Doctors & Their Records at Trial Benedene Cannata, 2015

Iasello v Frank, 257 AD2d (1st Dept 1999) P’s physician and chiropractor were properly permitted to testify as to their recent examinations of P , even though P didn’t serve reports after those examinations. The testimony described no new injuries or claims, but merely the consequences of injuries described in previously served medical reports.

Smith v Vohrer, 62 AD3d 528 (1st Dept 2009) In this MVA case, “while it would have been preferable for plaintiff to disclose the report of the final examination by her surgeon” (who testified at trial), in light of the other discovery D had, it wasn’t necessary to preclude the surgeon’s testimony, nor was D deprived of meaningful cross-examination. “Nor did the surgeon's passing reference to possible future surgery require a new trial, as it was not intentionally elicited, and, in context, was a reference to the future functional limitations of the injury.”

2d Dept

Hughes v Webb, 40 AD3d 1035 (2d Dept 2007) No medical report was required to be served prior to treating physician's testimony as to consequences of P’s injury (i.e. permanence) described in the previously served medical records and claimed in P’s bill of particulars. Trial court erred in precluding a treating physician from testifying as to the permanence of P’s injuries, based on a recent examination, on the ground that P had failed to serve a report of the examination per the medical exchange rule. "There could be no claim of surprise or prejudice engendered by this testimony. P’s bill of particulars clearly included allegations that the ankle fracture resulted in permanent injuries. (P)ermanency cannot be considered an injury or condition." Consequently, no medical report was required to be served prior to the physician's testimony, as no injuries or claims were being made, and the physician was to testify merely to the consequences of the injury as described in the previously served medical records.

Langhorne v County of Nassau, 40 AD3d 1045 (2d Dept 2007) The trial court should not have precluded P from eliciting testimony from a treating physician as to the findings of his latest examination of P, held about a week before trial, as well as his opinions on prognosis and permanency. The reason for the preclusion was that P hadn't timely exchanged a report indicating permanency under 22 NYCRR 202.17(h). This rule however, only applies to new injuries, and the permanency of a previously reported injury is not a new injury. Also P’s counsel made clear that there were no new injuries, and that he had just come into possession of the report that same day.

©Doctors & Their Records at Trial Benedene Cannata, 2015

4th Dept

Christopher v Dokko, 55 AD3d 1367 (4th Dept 2008) D provided P with the amended or supplemental reports only 20 days prior to the commencement of trial. Court properly refused to limit the testimony of D's two medical experts to the findings and conclusions set forth in their original medical reports.

See also Testimony Comporting with Medical Exchange., infra.

Serve CPLR 3101 (d) Disclosure

CPLR 3101(d)(i)

(d) Trial preparation. 1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph.

Don’t Ask, Don’t Get

Campo v Neary, 52 AD3d 1194 (4th Dept 2008) If you don’t ask for an expert disclosure, you don’t get it. The trial court in this case granted P a new trial on the ground that Ds’ expert witness disclosure was inadequate. This was error. The Fourth Department noted that there no evidence that P 57

©Doctors & Their Records at Trial Benedene Cannata, 2015 had ever requested an expert report and, in any event, any prejudice to P was alleviated when the court allowed P to question the expert outside the presence of the jury.

Preclusion for inadequate disclosure

Hageman v Jacobson, 202 AD2d 160 (1st Dept 1994) In this medical malpractice action, P’s disclosure to D hospital merely referenced the 3101(d) disclosure made as to D physician. It was found "so misleading" and "wholly inadequate" as to warrant preclusion of the expert’s testimony and non- submission of an important issue to the jury.

Hegler v Lowes Roosevelt Field Cinemas, Inc., 280 AD2d 645 (2d Dept 2001) P’s motion to preclude D’s experts for insufficient disclosure was denied since P failed to show a good faith effort to resolve the issue.

Arguinzoni v Parkway Hosp., 14 AD3d 633 (2d Dept 2005) Ds' motions to strike P’s 3101(d) disclosures should have been granted. The proposed testimony exceeded the scope of the bill of particulars.

Harper v Findling, 38 AD3d 601 (2d Dept 2007) P’s 3101(d) response stated merely that "D departed from good and accepted practice of medicine in the treatment of plaintiff in... failing to obtain adequate informed consent." D requested more detail as to the informed consent allegation, which P refused. Held: because the response was conclusory, and P was properly precluded from introducing expert testimony on this issue. The preclusion led to judgment for D at the close of P’s case.

Syracuse v Diao, 272 AD2d 881 (4th Dept 2000) In this medical malpractice case, P’s expert responses were “’so general and nonspecific that (Ds had) not been enlightened to any appreciable degree about the content of (the experts') anticipated testimony." The record on appeal indicates that P listed the subject matter on which the expert was expected to testify as, "The medical condition, diagnosis, surgeries and treatment provided to plaintiffs." As to the substance of the facts and opinions, the disclosure stated only, "Medical condition, diagnosis, surgeries and treatment of plaintiff pursuant to physicians' medical records, hospital records, and medical reports." The grounds for the expert opinion stated was, "Review of records of examination, treatment, surgery and follow-up treatment provided to [P]." 58

©Doctors & Their Records at Trial Benedene Cannata, 2015 No preclusion – disclosure found adequate

Krygier v Airweld, Inc., 176 AD2d 700 (2d Dept 1991) (T)here is no requirement to provide the fundamental factual information upon which an expert's opinions were made. Indeed, a party's request for the facts and opinions upon which another party's expert is expected to testify is improper. The requesting party is entitled only to the substance of those facts and opinions."

Beard v Brunswick Hospital, 220 AD2d 550 (2d Dept 1995) P moved to preclude D 's expert based on inadequacy of the 3101(d) disclosure. In denying the motion, the court noted that P herself had served a general disclosure.

Suhr v Long Beach Medical Center, 35 AD3d 440 (2d Dept 2006) Ds’ 3101(d) disclosure stated that their expert would offer testimony on "the mechanics of plaintiff's claimed injury, the probable causes of plaintiff's claimed injuries and whether said injury was caused by any alleged deviation of standard of care of defendant." Held: the statement was not so inadequate or inconsistent with the expert's testimony as to have been misleading.

Thompson v Swiantek, 291 AD2d 884 (4th Dept 2002) In this medical malpractice case, P disclosed that his expert was a board-certified urologist, that he was licensed to practice in New Jersey and Pennsylvania, and that he was a professor of neurology in Pennsylvania. P omitted the other information required by Jasopersaud, v Rho, 169 AD2d 184, arguing that this would enable Ds to ascertain the identity of the expert. The Fourth Department agreed stating, "Because disclosure of that additional information would ‘effectively lead to disclosure of the expert's identity’, the request for such disclosure is ‘palpably improper.’”

Preclusion for Untimeliness

1st Dept

Lissak v Cerabona, 10 AD3d 308 (1st Dept 2004) At a time when the trial justices seem to be more and more forgiving, in this medical malpractice case Ds’ conduct pushed the envelope too far. They first served 3101(d) notices in 2000, which P rejected as insufficient. A July order scheduled trial for February and ordered Ds to complete their expert exchange by October. Ds served expert responses in November that were identical to the earlier rejected responses 59

©Doctors & Their Records at Trial Benedene Cannata, 2015 (except for the addition of an economist) and P again rejected them. In January, Ds served new expert witness disclosures (including two orthopedic surgeons and an infectious disease specialist), all of which revealed that the defense was that all care provided by all Ds was within accepted standards of practice. The trial was adjourned from February 10th to the 19th. On the 13th, Ds served a fourth set of expert responses, adding new experts (a radiologist, pain management expert and a new economist). P objected to these notices as untimely and prejudicial. As icing on the cake, after P settled with one of the doctors, the co-Ds served yet another set of 3101(d) responses stating that P’s injuries were caused solely by the settled-out physician. Next came the motion to amend the answer to include an affirmative defense of set-off and GOL 15-108. P moved to preclude D from presenting newly noticed expert testimony regarding an undisclosed defense. The trial court denied P’s application, claiming there would be no prejudice. The First Department wrote:

"Defendant's inexcusably belated service on the very eve of trial of new 3101(d) responses noticing new experts in support of newly raised defense theories cannot be countenanced. Like plaintiffs in Kassis v Teachers Ins & Annuity Assn, 258 AD2d 271, Dr. Cerabona failed to demonstrate good cause for his service of the new expert witness information mere days before trial, particularly when that new information amounted to a material alteration of the theory of defense.”

The excuse offered apparently was that Dr. Cerabona's counsel was unable to make an assertion of negligence against the settled-out physician while also representing the hospital, which would be vicariously liable for the settled-out doctor. This was not "good cause." As a matter of fact, "this conflict of interest in resulting tactics were of course charted by the defense in the last-minute change in strategy made possible by the hospital's settlement of a claim against it (and) should not be permitted to inure to P s' detriment." Finally the court noted that "prejudice to plaintiffs is established in that such a last-minute designation of experts interferes with plaintiffs' ability to prepare for trial."

LaFurge v Cohen, 61 AD3d 426 (1st Dept 2009) P’s expert oncologist was precluded from offering testimony “regarding a new theory of liability that plaintiff failed to timely disclose and which was not apparent from her prior expert disclosures.” P’s supplemental expert disclosure was untimely and she failed to offer a sufficient explanation for the delay. “Although CPLR 3101(d)(1) does not establish a specific time frame for expert witness disclosure, a trial court has discretion to preclude expert testimony for failure to comply with the statute.”

©Doctors & Their Records at Trial Benedene Cannata, 2015 Green v William Penn Life Ins. Co. of New York, 74 AD3d 570 (1st Dept 2010) It’s not often that a decision stresses the “good cause shown” requirement on the issue of belated 3101(d) disclosures. However in this case, in which the main issue was whether P’s decedent had committed suicide, the First Department gave an example of a situation where “good cause” would exist. The example they gave – that the late retention of an expert would be necessary to counter some surprise testimony from the adversary – didn’t exist here. And while the First Department acknowledged the trial court’s wide discretion regarding belated 3101(d) disclosures, it held that “under the specific circumstances presented here”, the trial court improperly allowed, and then placed excessive reliance on, the testimony of D’s belatedly offered forensic pathology expert (the famous Dr. Michael Baden). The case was remanded for new trial.

2d Dept

Kalkan v Nyack Hospital, 227 AD2d 382 (2d Dept 1996) Ps were precluded from calling a medical expert on the ground that they had failed to comply with a court order directing expert disclosure. Since this was a medical malpractice action, the order of preclusion effectively foreclosed Ps from proving their case. The result was dismissal of the action on the merits, such that the remedies afforded by CPLR 205 (a) were unavailable.

Klatsky v Lewis, 268 AD2d 410 (2d Dept 2000) In this case, the trial court permitted P to retain and call a radiologist expert on the eve of trial. In reversing and ordering a new trial, the Second Department made no mention of intentional conduct or prejudice to the other side. Here, the court simply found that "P's proffered excuse does not rise to the level of ‘good cause shown’ so as to avoid preclusion of the subject expert testimony under 3101(d).”

Tsatsakis v Booth Memorial Medical Center, 37 AD3d 591 (2d Dept 2007) P’s anesthesiology expert was disclosed two weeks after the start of jury selection. The trial court should not have allowed the expert to testify. The Second Department noted that "expert disclosure is of particular importance in medical malpractice actions given that there is heightened reliance on expert testimony." Here P failed to show good cause for not disclosing the expert within a reasonable time after retention. The case was remanded for new trial on the claim against D anesthesiologist. The court didn't say whether P’s expert should be precluded on the new trial. D retained a radiology expert two days before trial and served the corresponding 3101(d) response one day before trial.

©Doctors & Their Records at Trial Benedene Cannata, 2015 The radiologist shouldn't have been permitted to testify. P was prejudiced by the late notice, given that the radiologist testified to a previously undisclosed theory that MRI films showed tears due to osteoarthritis, rather than trauma, and the City failed to show good cause for retaining the expert at the last-minute.

Lucian v Schwartz, 55 AD3d 687 (2d Dept 2008) The trial court properly precluded P’s expert neurologist from testifying. P failed to provide an adequate explanation for his inordinate delay in disclosure.

Banister v Marquis, 87 AD3d 1046 (2d Dept 2011) Preclusion of P’s expert radiologist, first identified after trial began, was not a provident exercise of discretion, where P’s explanation for the late designation (unstated in the opinion) wasn’t based on good cause. There was no mention of lack of prejudice to the adversary.

Guzman v Spring Cr. Towers, Inc., 63 AD3d 1105 (2d Dept 2009) No abuse of discretion in allowing two EMTs to testify for D despite lack of prior notice. There was no evidence that the lack of notice was willful, and any prejudice was minimal since P had access to the ambulance report and the technicians.

Krimkevitch v Imperiale, 104 AD3d 649 (2d Dept 2013) The trial court properly permitted an EMT, called by D, to testify at trial despite untimely 3101(d) disclosure. There was no evidence of willfulness or prejudice Also, P both possessed and had subpoenaed the ambulance call report, about which the EMT testified.

Deandino v New York City Transit Auth., 105 AD3d 801 (2d Dept 2013) On the second day of trial, D sought to serve a 3101(d) disclosure. There was no abuse of discretion in precluding the expert from testifying.

3d Dept

Meyer v Zeichner, 263 AD2d 597 (3d Dept 1999) This med mal action, brought in 1995, was slated for trial in 1998 with “no adjournments.” At a pretrial conference a month before trial, P s' counsel requested an adjournment because (inter alia) they didn't have an expert who was able to testify that month. Supreme Court adjourned the trial for 30 days, but indicated that a motion to dismiss the complaint would be entertained later. Ds promptly moved to reargue and to dismiss based on P s' complete failure to furnish a 3101 (d) response.

©Doctors & Their Records at Trial Benedene Cannata, 2015 In opposition, P s' counsel stated that, at the time the action was commenced “a physician was consulted in connection with plaintiff (s') certificate (of) merit” and that “(m)ost unfortunately, and to our surprise, due to advanced age and frail mental health, that physician is currently unavailable to testify at trial.” The court found this was “arguably relevant” and “minimally probative” on the adjournment issue, but had no discernible relationship to the failure to provide a 3101 (d) disclosure. As there was no excuse for P’s failure, Supreme Court acted within its broad discretion in precluding P from offering expert testimony and dismissing the complaint.

4th Dept

McClain v Lockport Memorial Hospital, 236 AD2d 864 (4th Dept 1997) lv den 89 NY2d 817 (1998) P in this medical malpractice action didn't serve the 3101(d) disclosure until after jury selection, and failed to establish good cause for delay.

No preclusion for untimeliness

1st Dept

Neel v Mount Sinai Hospital, 196 Misc 2d 343 (App Term 1st Dept 2003) In this malpractice action alleging improper administration of medication, P was permitted to call a psychiatric expert despite no 3101(d) disclosure. Besides the usual "unintentional" nondisclosure, the court noted "D was aware early on of the nature of P’s malpractice claim and of P’s intent to elicit psychiatric expert testimony." The court offered D an adjournment to cure any prejudice.

Ramsen A. v New York City Hous. Auth., 112 AD3d 439 (1st Dept 2013) Although Ps served their expert disclosure post-note of issue, the court properly denied D’s motion to preclude. D had the disclosure about two months prior before the scheduled trial date “which is not the eve of trial.”

2d Dept

Johnson v Greenberg, 35 AD3d 380 (2d Dept 2006) Expert should not have been precluded due to late expert response. D’s claim of “undue prejudice” was conclusory and without factual basis, particularly since the case was marked off calendar. 63

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Gayz v Kirby, 41 AD3d 782 (2d Dept 2007) Preclusion improper absent evidence of intentional or willful failure to disclose plus a showing of prejudice. Even if intentional (which seems to have been the case here), there was no prejudice since the trial was being adjourned.

Saldivar v IJ White Corp., 46 AD3d 660 (2d Dept 2007) Adversary was aware of expert's identity and substance of opinion from earlier summary judgment motion. Even partial preclusion was “improvident exercise of discretion.” Intentional failure/delay plus prejudice not present. No prejudice given content of bill of particulars and earlier affidavit.

Navarette v Alexiades, 50 AD3d 873 (2d Dept 2008) In this medical malpractice case, P served a 3101(d) disclosure 8 years after the surgical procedure at issue, 6 years after this action was commenced, 2 years post service of the bills of particulars, and 11 days before the scheduled trial date. The disclosure included new theories of liability not readily discernable from the bills of particulars. Instead of outright preclusion, P was properly directed to serve new expert disclosure, this time limited to the allegations of the original bill of particulars. (P was also properly denied leave to amend the bills of particulars at that late date.)

Ocampo v Pagan, 68 AD3d 1077 (2d Dept 2009) The trial court should not have precluded D's expert radiologist, where D had an affidavit of service showing that the 3101(d) disclosure was timely served and the real issue was whether had P had actually received it. Although P ‘s counsel maintained that he was unaware of witness until right before trial, the trial court could have just adjourned the trial to cure any prejudice to P. There was no evidence of intentional or willful failure to disclose by D.

3d Dept

Gushlaw v Roll, 290 AD2d 667 (3d Dept 2002) D's 3101(d) response was served six weeks before the scheduled trial date. It indicated that D intended to produce a biomechanical engineer and an oral surgeon. Both were precluded. On appeal, only the response as to the oral surgeon was resurrected. The use of an oral surgeon as an expert in this dental malpractice case could hardly be unexpected, and there was no proof of prejudice to P or willfulness by D. However, P’s counsel “may well have been caught wholly unaware” by a 3101(d) response designating a biomechanical engineer. The court found that it was unreasonable to expect that P’s

©Doctors & Their Records at Trial Benedene Cannata, 2015 counsel would be able to prepare for trial, or to engage a rebuttal expert in the six- week period.

Silverberg v Community General Hospital of Sullivan County, 290 AD2d 788 (3d Dept 2002) P served expert disclosure almost four months prior to the scheduled trial date, but not in compliance with the Third Judicial District rule (which requires service of the 3101(d) disclosure before filing the note of issue). Nothing in the record suggested the noncompliance was willful or intentional, and it could not be said that delay was unreasonable under the circumstances. Ds asserted neither prejudice nor insufficient time to prepare for trial. The Third Department rejected D’s argument that failure to comply with the expert disclosure rule would automatically lead to preclusion and divest the trial court of his discretion to allow service of the response post note of issue.

Mead v Dr. Rejaphyax Dental Group, 34 AD3d 1139 (3d Dept 2006) The 3101(d) disclosure, made at trial, involved a document dated a year earlier. It was allowed. The court found no prejudice because P was aware of the defense theory as well as certain key information. The court did note that where a party hires an expert before trial but fails to provide or supplement an expert disclosure, preclusion may be appropriate, but only if there is prejudice and a willful failure to disclose. However the Third Department encourages trial courts to look to less Draconian measures.

Scheduling and the Medical Doctor

Doctors are busy people, and sometimes this causes problems for the trial lawyer. How many trials have been adjourned or continued for the convenience of the medical witness? It is not a given however, that an adjournment will be granted. Whether to do so “is addressed to the discretion of the trial court and should not be interfered with absent a clear abuse thereof.” Blunt v Northern Oneida County Landfill, 145 AD2d 913 (4th Dept 1988). While “(l)iberality should be exercised in granting postponements or continuances of trials to obtain material evidence and to prevent miscarriages of justice” Balogh v H.R.B. Caterers, 88 AD2d 136, 141 (2d Dept 1982), an adjournment is properly denied where the expert's unavailability is due to counsel's failure to exercise due diligence.

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Hefte v Bellin, 137 AD2d 406 (1st Dept 1988) A treating surgeon who was supposed to testify at trial had written a post- operative report suggestive of malpractice. The hospital where the procedure had been performed had closed down, the report never made it into the microfiche copy of the hospital records, and the court clerk mistakenly destroyed the only certified copy of the hospital record. The only way left to get the report into evidence was to have the physician’s office records admitted. Held: it was an abuse of discretion to reject counsel’s request to issue a warrant to procure the attendance of the doctor and his office manager who disobeyed P’s counsel’s trial subpoena. “While CPLR 2308 (a) leaves the decision whether to issue a warrant for a witness to the discretion of the court, where a witness's testimony is not only relevant but necessary to a party's case, a warrant should issue when that witness does not respond to a judicial subpoena.” Compounding the error, the trial judge gave a “missing witness” charge as to this physician. The result was a new trial.

Guzman ex rel. Jones v 4030 Bronx Blvd. Associates LLC, 54 AD3d 42 (1st Dept 2008) Just before trial D successfully moved in limine to preclude P’s neuropsychologist from testifying on the ground that there was insufficient evidentiary foundation for the expert opinion that the infant’s TBI had been caused by the ceiling collapse in question. Left without an expert, P requested a continuance. Held: P should have been given the time to find a new expert. Had D's motion been made prior to jury selection, P would have had the opportunity to obtain another expert witness. Any resulting delay or waste of judicial resources wasn’t P’s fault. But for D's motion in limine, they were prepared for trial.

2d Dept

Matzoros v Koval, 160 AD2d 686 (2d Dept 1990) The trial court's refusal to grant a three-day continuance for the convenience of an examining physician was not an improvident exercise of discretion

Goichberg v Sotudeh, 187 AD2d 700 (2d Dept 1992) The trial court shouldn’t have dismissed the case after P’s attorney asserted that he couldn’t proceed to trial as scheduled due to the unavailability of an expert witness, whose testimony was necessary to establish a prima facie case. The attorney had made

©Doctors & Their Records at Trial Benedene Cannata, 2015 reasonable efforts to secure the expert’s presence, and the court felt that P shouldn’t be denied her day in court because of the expert’s inflexible schedule.

Josephson v Higgins, 243 AD2d 444 (2d Dept 1997) Trial court should have granted D's application for a brief continuance when one of her medical experts couldn’t appear as scheduled because he had been subpoenaed to testify in another legal action that morning.

Mura v Gordon, 252 AD2d 485 (2d Dept 1998) Two days before trial, P s' counsel learned that his medical expert had failed to diary the trial date, and that consequently, the expert had made plans to tour Italy for a month. Counsel applied for a “reasonable adjournment”, and submitted the expert’s affidavit explaining the situation and indicating that she would be available to testify if the trial were rescheduled. Held: the court should have granted the adjournment. Apparently, this was the only delay attributable to P and it wasn’t due to any lack of diligence.

Pugliese v D'Estrada, 259 AD2d 743 (2d Dept 1999) The trial court did not improvidently exercise its discretion in refusing to grant a one to two week adjournment of the trial so that P could re-serve subpoenas for lost medical records.

Romero v City of New York, 260 AD2d 461 (2d Dept 1999) The trial court denied D's request for an adjournment so that he could call his examining doctor. To make matters worse, in summation, P’s counsel commented on the examining doctor's absence. It was error to have denied the adjournment. The trial had been progressing rapidly, D made an offer of proof showing that the doctor was unavailable that day, but would be available the following morning, and the testimony “went to the heart of the damages issue.”

Lanigan v United School Bus, Inc., 2 AD3d 410 (2d Dept 2003) The trial court providently exercised its discretion in refusing to grant D 's request for a two-day continuance to call their physicians as witnesses. (Circumstances unstated.)

Brusco v Davis-Klages, 302 AD2d 674 (3d Dept 2003) P s' counsel sought to adjourn a trial for a number of reasons. One of them was that he was unaware, until just before the trial date, that P’s treating surgeon had a “policy” of not testifying in court, and that the surgeon would only testify via a videotaped deposition, which had to be scheduled in advance.

©Doctors & Their Records at Trial Benedene Cannata, 2015 The court acknowledged that the need for the adjournment was due to P’s counsel's law office failure. Yet the court saw no reason to punish the litigant. There was no indication of purposeful delay, P had otherwise diligently pursued the litigation, the surgeon's testimony was clearly material, and D suffered no prejudice. It was not an abuse of discretion to grant the adjournment.

Jakobson v Multi Hacking Corp., 2003 WL 21697042, 1 (App Term, 2d and 11th Jud Dists 2003) Trial court appropriately denied D's request for a second continuance to secure the presence of his expert witness. The doctor failed to appear a second time because D's investigator had mistakenly notified the doctor's office that the case had been settled. Consequently, the alleged scheduling problem was of D’s own making.

Conde v Williams, 6 AD3d 569 (2d Dept 2004) P requested a brief continuance on the grounds that the medical expert was unavailable. Trial court should have granted it, since the expert’s testimony was material and the request hadn’t been made for the purpose of delay.

Byrnes v Varlack, 17 AD3d 616 (2d Dept 2005) The trial court improvidently denied D's request for an adjournment so that he could call his examining doctor. The trial had been progressing rapidly, D made an offer of proof showing that the doctor was unavailable that day, but would be available the following morning, and the testimony “went to the heart of the damages issue.”

Zysk v Bley, 24 AD3d 757 (2d Dept 2005) P’s attorney had planned to call D’s examining physician as a fact witness. It wasn’t until the Friday afternoon before that the trial judge denied P’s request to call the physician and directed P to produce his expert the following Monday, prompting a scheduling dilemma. The trial court should have granted P’s request for a brief continuance until her medical expert was available to testify. The doctor was only available to testify on Tuesday and Thursday of that week, and was performing surgeries on Monday and Wednesday that couldn't be rescheduled. There was no indication that the request was made for the purpose of delay, or that the need for the continuance resulted from P’s failure to exercise due diligence.

Hodges v City of New York, 22 AD3d 525 (2d Dept 2005) P sought to adjourn a trial due to unavailability of her treating doctor. The trial court denied the application, and directed P to work out any scheduling problems after jury selection. Three days later the parties, having selected their jury, reported to another judge. P moved for a mistrial and to disband the jury, now stating that her 68

©Doctors & Their Records at Trial Benedene Cannata, 2015 doctor might no longer be willing to testify even if subject to subpoena. The judge denied the motion and dismissed the case. This was error. The second judge should have taken into consideration the first judge’s ruling. The doctor’s testimony was material, the application was timely made for a purpose other than mere delay, and the need for the continuance wasn’t due to any lack of diligence, as the doctor's resistance had only recently come to light.

Lila v Bata, 33 AD3d 875 (2d Dept 2006) Personal injury P was entitled to brief continuance of damages only trial due to unavailability of her expert physician.

Farrell v Gelwan, 30 AD3d 563 (2d Dept 2006) Trial court properly denied P’s request for a continuance to secure expert rebuttal proof in this medical malpractice case. P had sufficient notice of the defense theory of causation, and could’ve adduced evidence to negate it on her direct case.

Hughes v Webb, 40 AD3d 1035 (2d Dept 2007) The trial court should have granted P a brief continuance in order to compel the testimony of D 's examining doctor as a fact witness. P had properly subpoenaed the doctor, but he failed to appear as directed. The testimony was material, P was certainly entitled to call the doctor on his direct case, and there was no indication that a continuance was sought for the purpose of delay, or that the need for a continuance resulted from P’s failure to exercise due diligence.

3d Dept

McKenna v Connors, 36 AD3d 1062 (3d Dept 2007) A trial date had been scheduled 14 months in advance. A few days before trial, P asked for an adjournment due to the prior engagement of counsel, which request was denied. Counsel renewed the request on the day of trial, this time adding that the expert was unavailable. The trial court denied the request and granted Ds' motions to dismiss. This was not an abuse of discretion, “inasmuch as the unavailability here was of P s' own making.”

Newmark v Animal Emergency Clinic of Hudson Valley, 38 AD3d 1110 (3d Dept 2007) Veterinarians are busy doctors too. The trial in this case was scheduled five months in advance and P had been given a one-day adjournment to produce her expert

©Doctors & Their Records at Trial Benedene Cannata, 2015 witness. Nevertheless, she failed to do so, despite her assurances that the witness would testify that day. The trial court appropriately refused to grant a second adjournment. P failed to outline the steps she had taken to secure the expert witness, or to show her efforts to produce the expert, or to offer any explanation beyond mere speculation for the expert's unavailability. It didn't matter that the expert's proffered testimony was material and necessary.

4th Dept

Harper v Han Chang, 267 AD2d 1011 (4th Dept 1999) The trial court denied P’s application to adjourn the trial because of the unavailability of the expert medical witness, and instead dismissed this medical malpractice case. This was an appropriate exercise of discretion. P’s attorney had known for at least eight months that the expert, who had moved to New Mexico, wouldn't come to New York for trial, and failed to exercise due diligence to remedy that situation.

Stevens v Auburn Memorial Hosp., 286 AD2d 965 (4th Dept 2001) P’s expert, who lived in Florida, was ill and couldn't attend the trial scheduled in May. Counsel thus sought an adjournment until September, which the court refused to grant without Ds' consent. This was error. The testimony was material and the delay wasn't P’s fault.

Taking a Doctor’s Testimony Before the Trial CPLR 3117 Use of depositions

“(a) Impeachment of witnesses; parties; unavailable witness. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used in accordance with any of the following provisions: “4. the deposition of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances, subject to the right of any party to move pursuant to section 3103 to prevent abuse.”

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1st Dept

Clemons v Glicksman, 25 AD3d 468 (1st Dept 2006) P unsuccessfully moved to bar Ds from deposing his treating physician. He then retained the physician as his expert, and renewed his motion. Once again it was denied, as an expert may be deposed upon a showing of special circumstances – apparently present here. Thus, if P retains his treating physician as an expert, the physician could still be deposed upon a showing of special circumstances.

Lennon v Metro N. Commuter, 51 AD3d 432 (1st Dept 2007) A physician performed an examination in a FELA case. P deposed the physician, without counsel, and learned that the physician had altered his report at the request of “a certain non-party.” P then sued the physician and others, consolidating the claims with the FELA case. The physician moved to strike the prior deposition testimony as it was (1) not court-ordered and (2) he had not been represented by counsel. The motion was denied The deposition had been properly noticed, no one moved for a protective order, and there are no policy proscriptions against physicians being deposed without counsel.

Carson v Hutch Metro Ctr., LLC, 110 AD3d 468 (1st Dept 2013) D subpoenaed three physicians who had treated P for prior injuries that were allegedly exacerbated as a result of the subject accident. P had supplied D with authorizations to obtain these doctors’ records. The subpoenas were properly quashed on P’s motion. D hadn’t shown that the testimony sought was unrelated to diagnosis and treatment and was the only means of discovering the information sought. P admitted that the handwriting on certain forms contained in those physicians' records belonged to her.

2d Dept

Goldblatt v Avis Rent A Car Sys., 223 AD2d 670 (2d Dept 1996) P , a Washington, D.C. resident, was injured in a Nassau County car accident and sued in New York. The defense physical was conducted in D.C. by a D.C. physician. Ds then sought leave to depose the physician in D.C., as they intended to use his deposition testimony at trial. P cross moved for a protective order. Held: Ds were clearly entitled to depose the physician ( citing CPLR 3101 [a] [3]), and would be authorized to use his deposition at trial as evidence-in-chief without demonstrating special circumstances or unavailability (citing CPLR 3117 [a] [4]). The trial court should have issued an open commission.

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Jones v Sherpa, 5 AD3d 634 (2d Dept 2004) P's motion for leave to depose their own treating physician, who lived and practiced in Pennsylvania, was not in the nature of discovery. The motion was properly granted, as the general rule foreclosing post note of issue discovery didn't apply. As the physician agreed to the deposition, there was no need for the court to issue a formal commission. The court noted that P would be permitted to use the physician's deposition testimony at trial as evidence-in-chief, citing CPLR 3117(a)(3)(ii).

Tannenbaum v Tenenbaum, 8 AD3d 360 (2d Dept 2004) Supreme Court properly granted P’s motion for a protective order pursuant to CPLR 3103 quashing D 's subpoena of a nonparty treating physician, as D failed to show special circumstances requisite to discovery from a nonparty witness.

Brandes v North Shore University Hosp., 22 AD3d 779 (2d Dept 2005) D sought a post note of issue deposition of a nonparty treating physician of P’s decedent. Held: the deposition wasn’t in the nature of discovery citing CPLR 3101(d)(1)(iii). Thus D didn't have to show unusual or unanticipated circumstances usually required for post-note of issue discovery.

Logan v Roman, 58 AD3d 810 (2d Dept 2009) A treating doctor’s testimony was videotaped 11 weeks prior to the trial. Held: • Trial court should not have precluded P from offering videotaped trial testimony of his treating physician concerning his pre-existing right hip arthritis and its aggravation, allegedly caused by the subject accident. • Ds were not surprised or prejudiced by the videotaped testimony of the doctor, which included an opinion on causation absent from previously- exchanged medical report. • Ds had ample opportunity to prepare their defense, and as the court noted, were well prepared for cross-examination, having questioned the doctor at length about the discrepancy between his testimony on direct and the opinion expressed in his narrative report. 4th Dept

Hill v Sheehan, 154 AD2d 912 (4th Dept 1989) P should have been permitted to depose her physician, who had moved to California and would not be available to testify at trial. P didn't know that the physician had relocated until her attorney began to prepare the case for trial. CPLR 72

©Doctors & Their Records at Trial Benedene Cannata, 2015 3117(a)(4) authorizes any party to use the deposition of a medical doctor without the necessity of showing special circumstances.

Substituting the Expert Physician

Mateo v 83 Post Ave. Associates, 12 AD3d 205 (1st Dept 2004) It appears that the physician who had treated P and whom P originally identified as her expert advised P’s attorney, on the eve of trial, that he was going to be taking a longer vacation than expected and so would not be available for trial. P’s attorney immediately sent a letter advising the court and his adversary that the original expert was unavailable and that he had retained a substitute expert. Attached to the letter was a 3101(d) response and expert CV. The trial court properly permitted the new expert to testify, there being no indication that the last-minute substitution was either willful or prejudicial. P’s attorney acted promptly to advise all concerned of the scheduling error and of the substance of the new expert's expected testimony, which was in all essential respects similar to the expected testimony of P’s treating physician and circumscribed to what was contained in P’s medical records.

Kurth v Wallkill Associates, 132 AD2d 529 (2d Dept 1987) P’s treating physician refused to be an expert witness. The trial court properly permitted another physician to testify based on x-ray reports, the treating physician’s reports, and hospital reports previously exchanged.

Futersak v Brinen, 265 AD2d 452 (2d Dept 1999) That D's examining physician had been subjected to professional discipline after he examined P didn’t justify a second defense physical by someone else. The mere concern that P might impeach the examining physician's credibility at trial with this information is not a sufficient basis for a second bite at the apple. To the same effect: Schissler v Brookdale Hosp. Center, 289 AD2d 469 (2d Dept 2001)

Marshall v 130 North Bedford Road Mount Kisco Corp., 277 AD2d 432 (2d Dept 2000) This case didn’t involve a physician, but is nonetheless pertinent. The untimely death of the expert P originally intended to call provided good cause for a late substitution.

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Hooks v Court Street Medical, P.C., 15 AD3d 544 (2d Dept 2005) The trial court precluded P’s expert physician on Frye grounds, as the physician’s causation theory was found not to be scientifically reliable. P then requested an adjournment to retain a new expert, which the court denied. The denial was appropriate, since another expert wouldn't have been able to proffer a scientifically reliable theory of causation either.

Ferro v Lee, 48 AD3d 412 (2d Dept 2008) Supreme Court providently exercised its discretion in permitting P to obtain a new expert and in adjourning the trial. D did not establish willful noncompliance.

Abato v Beller, 122 AD3d 554 (2d Dept 2014) In this dental malpractice action, P apparently had been examined by a certain doctor in contemplation of litigation, and it was decided that the doctor wouldn’t be serving as her examining physician at trial. Later, under CPLR 3121, D had P examined by the doctor’s partner. Held: Supreme Court providently exercised its discretion in permitting the partner to testify as an expert on D’s behalf. P contended that she had an expectation of confidentiality with respect to information obtained by the doctor who examined her at her request in contemplation of litigation. The court, however, was entitled to credit the partner’s testimony that the doctor disclosed no confidential or privileged information to him at any time.

Interviewing Plaintiff's Treating Physician

Arons v Jutkowitz, 9 NY36 393 (2007) A plaintiff may be required to sign HIPAA-compliant authorizations permitting treating physicians to discuss P’s medical condition with defense counsel at an ex parte interview. The rationale was likened to those in Niesig v Team I, 76 NY2d 363 (1990) and Siebert v Intuit, 8 NY3d 506 (2007), which allowed counsel to speak to certain employees of corporate defendants. The Court explained that HIPAA is merely a procedural prerequisite - indicative that the physician-patient privilege has been waived. Also pertinent: • The treating physician is “entirely free” to decline. • The Court assumes attorneys will “comport themselves ethically.” • Defense counsel can't be required to exchange notes with P’s counsel. The opinion explained: “an attorney who approaches a nonparty treating physician (or other healthcare professional) must simply reveal the client’s identity and interest, and

©Doctors & Their Records at Trial Benedene Cannata, 2015 make clear that any discussion with counsel is entirely voluntary and limited in scope to the particular medical condition at issue in the litigation.”

1ST Dept

Shefer v Tepper, 73 AD3d 447 (1st Dept 2010) “The motion court incorrectly interpreted the Court of Appeals' decision in (Arons v. Jutkowitz, 9 NY3d 393[2007] ) as permitting ex parte interviews of a plaintiff's healthcare providers by defense counsel only after a note of issue was filed. To the contrary, the Court of Appeals expressly rejected the long-standing practice of proscribing such interviews only after the note of issue was filed, and otherwise made it clear that the preferred time for such disclosure was before the filing of a note of issue.”

2d Dept

Porcelli v N. Westchester Hosp. Ctr., 65 AD3d 176 (2d Dept 2009) P may include language on HIPAA authorization advising the physician that his participation in any interview is voluntary. At the end of a long discussion of the law appears the following:

“The overall tenor of the decision of the Court of Appeals in Arons strongly suggests that it is of primary importance for the treating physician (or other health care professional) to be informed that the purpose of the interview is to assist defense counsel during the litigation and that his or her participation is voluntary. Providing such information best ensures that an individual who agrees to be interviewed will not unwittingly disclose privileged information regarding a medical condition not at issue in the litigation. Which party conveys such message and in what manner is of secondary importance. Accordingly, we hold that the method the plaintiffs employed here—placing the admonition directly on the HIPAA-compliant authorizations and highlighting the language—is consistent with Arons, as it clearly serves the primary purpose of conveying the information in a manner that best prevents the accidental disclosure of privileged information.”

Muzio v Anthony R. Napolitano, M.D., P.C., 82 AD3d 947 (2d Dept 2011) D’s' failure to obtain an Arons authorization expressly permitting interview with 75

©Doctors & Their Records at Trial Benedene Cannata, 2015 P’s treating physician warranted a protective order precluding D from (a) calling the physician to testify on D’s case; and (b) from introducing any information obtained during the interview. “Notwithstanding the fact that the plaintiff placed her medical condition in controversy, the defendants were required to obtain an authorization expressly permitting an interview with her treating physician prior to conducting the interview.”

Wright v Stam, 81 AD3d 721(2d Dept 2011) “Contrary to the plaintiff's contention, the decision of the Court of Appeals in Arons v Jutkowitz, 9 NY3d 393 does not prohibit defense counsel from conducting an ex parte interview with a nonparty physician before a note of issue has been filed. Rather, ‘the filing of a note of issue denotes the completion of discovery, not the occasion to launch another phase of it.’”

3d Dept

Poser v Varnitsky, 46 AD3d 1295 (3d Dept 2007) Decided one month after Arons, follows Arons.

Straub v Yalamanchili, 58 AD3d 1050 (3d Dept 2009) Before the trial of this medical malpractice action, defense counsel had ex parte conversations with two of P’s treating physicians without first obtaining a HIPAA compliant authorization. "This was in clear violation of the law in effect at the time of trial.” The Third Department noted that counsel had obtained “information that he otherwise did not have, which enabled him to elicit testimony that was not only favorable to his client, but that came as a complete surprise to patient and he was unprepared to rebut.” New trial for P.

4th Dept

Grieco v Kaleida Health, 82 AD3d 1671 (4th Dept 2011). The court directed P to execute authorizations permitting D to interview decedent’s treating physicians, and to attach to them a list of the negligence allegations form the bill of particulars, “inasmuch as such information limits the scope of disclosure to only those medical conditions relevant thereto.” The standardized authorization form that the court directed P to use states that (a) the doctor may discuss only the listed medical conditions (from the negligence paragraph(?): (b) the purpose of the interview is to assist D; (c) that it’s not at P’s

©Doctors & Their Records at Trial Benedene Cannata, 2015 request; and (d) despite P’s authorization, the physician is free to decline the interview.

Supreme Court

Kleeschulte v Blair, 20 Misc 3d 1114(A) (Sup Ct, Ulster County, 2008, Lynch, J.) After supplying defense counsel with an Arons authorization, P’s counsel wrote the treating physician a letter advising that he was not required by law to have any conversation with defense counsel, and requesting that the physician advise as to when the interview would take place so that she could sit in. Defense counsel thus arrived for the interview and found P’s counsel there too. He refused to proceed, and thereafter moved for sanctions, including dismissal. The court agreed that the letter unduly interfered with Ds’ rights under Arons. It held that defense counsel is “entitled to privately interview plaintiff’s treating physicians without interference from plaintiff’s counsel.” The court further prospectively permitted defense counsel to supplement their 3101(d) disclosures based on any information gleaned from the conversation, as long as it was done by a date certain. Finally, although it declined to dismiss the case or assess sanctions, it directed P to reimburse Ds for the missed appointment, plus attorneys’ fees on the motion, to the tune of $1000.

Outrageous Expert Fees

Physician’s Duty to Assist in the Administration of Justice

The American Medical Association Code of Medical Ethics, 9.07

E-9.07 Medical Testimony

As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has a legal claim requests a physician’s assistance, the physician should furnish medical evidence, with the patient’s consent, in order to secure the patient’s legal rights.

Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medical 77

©Doctors & Their Records at Trial Benedene Cannata, 2015 expertise. Medical witnesses should be adequately prepared and should testify honestly and truthfully to the best of their medical knowledge.

The medical witness must not become an advocate or a partisan in the legal proceeding. The medical witness should be adequately prepared and should testify honestly and truthfully. The attorney for the party who calls the physician as a witness should be informed of all favorable and unfavorable information developed by the physician’s evaluation of the case. It is unethical for a physician to accept compensation that is contingent upon the outcome of litigation. II, IV, V, VII.

Issued June 1986; Updated June 1996 based on the report "Ethical Guidelines for Medical Experts," adopted December 1995.

Caldwell v Cablevision Sys. Corp., 20 NY3d 365 (2013) P claimed to have stepped into a dip in a trench that caused her to fall. But D subpoenaed the ER doctor “called merely as a fact witness” in the liability phase to testify to his consultation note where he wrote that P “tripped over a dog while walking last night in the rain.” On cross, P's counsel elicited that CSI paid the expert $10,000 for appearing and testifying. The doctor denied that his testimony was influenced by the payment, stating simply that he was there to “testify to my records.” On appeal, P argued that, having been subpoenaed, the ER doctor had a legal right to only a $15 attendance fee, and because he was paid in excess of that amount, the trial court should have stricken his testimony. This argument was rejected: CPLR 8001(a) sets forth a minimum fee, not a maximum one. Moreover, the “substantial payment” didn’t require exclusion of the doctor’s testimony. However, Court of Appeals was:

“troubled by what appears to be a substantial payment to a fact witness in exchange for minimal testimony. Such payments, when exorbitant as compared to the amount of time the witness spends away from work or business, create an unflattering intimation that the testimony is being bought or, at the very least, has been unconsciously influenced by the compensation provided.”

It also noted that:

“A line must therefore be drawn “between compensation that enhances the truth seeking process by easing the burden of testifying witnesses, and compensation that serves to hinder the truth seeking process because it tends to ‘influence’ witnesses to

©Doctors & Their Records at Trial Benedene Cannata, 2015 ‘remember’ things in a way favorable to the side paying them” (N.Y. St. Bar. Assn. Comm. on Prof. Ethics Op. 668).”

Thus, the trial court should have issued a bias charge specifically tailored to address the $10,000 payment made here. A general bias instruction was not enough. “Where, as here, the party that subpoenaed the witness offers no explanation for a fee that is seemingly in excess of reasonable compensation for lost time and incidental expenses, the trial court, upon a timely request by an objecting party, must charge as to the witness's potential bias.”

Hessek v Roman Catholic Church of Our Lady of Lourdes in Queens Village, 80 Misc 2d 410 (Civ Ct, City of New York, Queens County, 1975) Although the treating physician was available to testify, his $750 fee was "exorbitant" in this 1975 civil court case. P sought to have the records admitted into evidence without the physician's testimony, but defense counsel objected, arguing that he was being denied the opportunity to cross-examine the doctor. P’s counsel offered foundation testimony from the physician's managing agent to the effect that P was the physician's patient, that the file in question was kept in the regular course of the physician's business, and that the agent had personally seen the file and was familiar with its entries and the doctor's signature. The court found that whether the physician was deceased, or unattainable paren read unaffordable), the same rule would apply, stating:

“The court is of the opinion that when the doctor treats a person involved in an accident and prepares medical reports, he has an obligation to appear and give testimony. His compensation should be the fair and reasonable value for his time spent in court and the nature of his testimony. In this case, his fee for testifying is outrageous.

"It would be unconscionable for the Court not to allow this medical record to go into evidence. It would sever the good medical-legal relationship with the general public. The court therefore rules that this medical record may come in under rule 4518(a)."

The court found the record could come in as to: dates of visits; treatment rendered; patient complaints; physical examination; whether x-rays were taken; prescriptions; laboratory reports; progress record; and discharge record. Excluded from evidence was any medical opinion.

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Four Instances of Physicians At Trial

It makes a difference what role the doctor you intend to call as a witness at trial has played in the case. Did she render care and treatment to P, in which case she is a “treating physician?” Did he only examine P (almost always for the purpose of the litigation) making him an “examining physician?” Or has the doctor neither treated nor examined P, but has reviewed the records for the purpose of testifying either to P’s condition or to any departures from accepted medical practices, making the doctor a pure “expert” in the case? And of course it’s also possible that the doctor is a defendant who allegedly committed medical malpractice. The pretrial requirements to calling the doctor, the scope of the doctor’s testimony, and even how the doctor is questioned may differ according to the doctor’s role in the case. Sometimes the differences are subtle, or blurred. Of course, every doctor is an expert by virtue of his educational degree and experience. The cases reported in the next few sections will hopefully impart a better understanding as to the legal principles pertaining to the different “instances” of physicians at trial. The reader may note that in some of the sections that follow, the words “treating”, “examining”, and “expert” may appear in bold text. In case the role of the doctor makes a difference to your next issue at trial or research assignment, you will easily be able to pick out the cases that involved a doctor witness in a particular role.

Treating Physicians

Who is a “treating physician”? What makes a doctor a “treating” physician? Perhaps the answer lies in the following cases.

Mannino v Agway Inc. Grp. Trust, 192 AD2d 131 (2d Dept 1993) At issue in this case was whether Blue Cross/Blue Shield was obligated to indemnify their insured against all costs related to a bone marrow transplant which was needed in order to treat leukemia, which P had contracted before the effective date of the subject health insurance policy. Blue Cross/Blue Shield argued that the

©Doctors & Their Records at Trial Benedene Cannata, 2015 plaintiff's leukemia was a “pre-existing condition” within the meaning of an exclusionary clause contained in the policy. Addressing one of several ambiguities in the policy, the Second Department wrote: “The third ambiguity in the ‘pre-existing conditions’ clause of the appellant's health insurance policy is the one inherent in the term ‘treatment.’

“’Treatment’ can be defined broadly, so as to encompass not only the rendering of medical services designed to alleviate pain or suffering, but also the rendering of medical services designed to investigate the cause of a particular symptom. In other words, as held in the Texas cases noted above (Scarborough v Aetna Life Ins. Co., supra; Provident Life & Acc. Ins. Co. v Hutson, supra ), the term “treatment” can encompass diagnostic procedures as well. This is the definition adopted in several other cases (see, e.g., Lucito v Louisiana Hosp. Serv., 392 So 2d 700 [La] ).

“However, there are also cases which recognize that the term ‘treatment’can be more narrowly defined. In Modern Woodmen of Am. v Miles, 178 Ind 105, 97 NE 1009, the court held that the prescription of an analgesic for a headache was not ‘treatment’ because the physician was merely relieving a symptom, rather than curing a specific disease (see also, Indiana Comprehensive Health Ins. Assn. v Dye, 531 N.E.2d 505 [Ind App]; Mutual Life Ins. Co. of New York v Bishop, 132 Ga. App. 816, 209 SE2d 223; Beggs v Pacific Mut. Life Ins. Co., 171 Ga App. 204, 318 SE2d 836; Franceschi v American Motorists Ins. Co., 852 F 2d 1217 [diagnostic testing not ‘treatment’] ). ‘“Treatment, as commonly understood, occurs when a health care provider takes steps to remedy or improve a malady that caused the patient to seek [the provider's] help’ (Shanks v Blue Cross & Blue Shield United of Wisc., 979 F.2d 1232, 1233).”

Resolving the issue of ambiguity – as it must in a contract construction case -- in favor of the party who did not draft the contractor, the Second Department concluded that in this particular case and context, the term “treatment” did not include diagnostic testing, but applies only to medical services designed to alleviate a disease, illness, or a symptom thereof.

Wylie v Consol. Rail Corp., 229 AD2d 966 (4th Dept 1996) The court rejected P’s argument that a radiologist who had interpreted a CAT scan 81

©Doctors & Their Records at Trial Benedene Cannata, 2015 taken of P a few weeks after the subject accident, wasn’t a treating physician. Read more about this case in the next section: 3101(d) Disclosure Not Necessary for a Treating Physician

Figueroa v Sliwowski, 43 AD3d 858 (2d Dept 2007) P was examined by an orthopedic surgeon. According to P’s appellate brief, P was initially referred to the doctor for an evaluation due to persistent pain and restriction of motion. After examining P , the doctor gave P “an option for treatment,” prescribed medication, recommended certain treatment modalities, and saw P on four occasions. He did not perform surgery. Contrary to D 's contention, P’s orthopedic expert…was not a nontreating physician, retained only as an expert. Thus he could testify as to the history of the accident as related by P , and also as to P’s medical complaints.

NOTE: The First Department once wrote that “It is not necessary that a radiologist see, examine, take a history of or treat a patient in rendering medical services.” Raptis-Smith v St. Joseph's Med. Ctr., 302 AD2d 246 (1st Dept 2003). Threshold decisions (at least in the Second Department) commonly refer to a radiologist as a plaintiff’s “treating radiologist” when it is clear that the treatment consisted of making findings on x-ray or interpreting an MRI. See e.g., Kasel v Szczecina, 51 AD3d 872, 873 (2d Dept 2008); Giordano v Allstarz Limousine, Ltd., 53 AD3d 470 (2d Dept 2008); Collado v Satellite Solutions & Electronics of WNY, LLC, 56 AD3d 411 (2d Dept 2008). Indeed, searching the phrase “treating radiologist” in Westlaw (as of May 2015) yields 16 cases, all from the Second Department, 15 of which were threshold motions. (The last was a medical malpractice action that concerned a radiologist’s administration of radiation therapy.)

Bailey v Owens, 3 Misc 3d 1101 (A) (Sup Ct, New York County, 2004, Carey, J.) P tried to avoid disclosing a report prepared by a physician who counsel argued merely examined P for purposes of litigation. However, the court noted that the doctor -- an ophthalmologist -- had not only conducted an examination of P’s eyes, but also prescribed a prism lens. The court found that this constituted affirmative medical care as opposed to simply examining P for the purpose of forming an expert opinion for litigation. Thus, the court held that the ophthalmologist took on the role of subsequent treating physician and ordered the disclosure.

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3101(d) Disclosure Not Necessary for a Treating Physician

It seemed to have been the law in all four departments that treating physicians may testify at trial as to both their medical treatment and observations and their expert medical opinions without the need of the service of a CPLR 3101(d) expert response. However, in 2008, the Third Department decided Norton v Nguyen (set forth in this section). There are many case blurbs in this section because, judging how many times this issue has gone up on appeal, apparently many attorneys and judges still don’t get it.

1st Dept

Schwartz v Tab Operating Co., 239 AD2d 244 (1st Dept 1997) Here the court noted that the doctor's testimony was limited to what was contained in his records, which D could have obtained well before trial via authorizations furnished to them. The only reason Ds could have been prejudiced was because they did not avail themselves of the authorizations. The physician was properly permitted to testify as to causation.

Ryan v City of New York, 269 AD2d 170 (1st Dept 2000) Defense counsel had received the reports and records of two treating physicians. They conceded that the doctors could testify regarding their examinations and treatment, but argued that the doctors should not be allowed to testify as to causation because P had not served a 3101(d) exchange. The court held that, as D had sufficient notice of the proposed testimony, neither surprise nor prejudice would result. To the extent D had been prejudiced by not having the physician's credentials, "that issue could easily be resolved prior to trial." Because the trial court had improperly precluded the doctors from testifying, P was granted a new trial.

Finger v Brande, 306 AD2d 104 (1st Dept 2003) The treating physician properly was permitted to testify and opine as to causation without service of a 3101(d) disclosure.

©Doctors & Their Records at Trial Benedene Cannata, 2015 P had not served a 3101(d) disclosure or scheduled a physician to testify, he would not be able to relate his injuries to the purported attack. The trial court granted the motion from the bench. The First Department unanimously reversed, writing:

“Where, as here, a plaintiff's intended expert medical witness is a treating physician whose records and reports have been fully disclosed pursuant to CPLR 3121 and 22 NYCRR 202.17 , a failure to serve a CPLR 3101(d) notice regarding that doctor does not warrant preclusion of that expert's testimony on causation, since D has sufficient notice of the proposed testimony to negate any claim of surprise or prejudice (see Ryan v City of New York, 269 AD2d 170).”

The court noted parenthetically that causation in this case did not have to be established by expert testimony. It also noted that failure to comply with 3101(d) "is not a basis for dismissal, but at most, preclusion of the expert's testimony at trial." Also a factor here was that D did not move to compel compliance until after the jury had been selected.

NOTE: Compare this case with the holding in Tonaj v ABC Carpet Co., Inc., 43 AD3d 337 (1st Dept 2007) (see index).

Soriano v Inoa, 73 AD3d 459 (1st Dept 2010) The decision in this case isn’t much, but the appellate briefs reveal the true story. This case is an example of what happens when a plaintiff’s attorney serves a somewhat belated 3101(d) disclosure for a treating physician even though the attorney is aware of the law that states that 3101(d) disclosures aren’t necessary for treating physicians. Perhaps the attorney felt that he was playing it safe by serving more than what was necessary. All he got for his trouble was a preclusion which led to dismissal, and a forced trip “upstairs” to undo the mess. P’s brief explains that the precluded physician, Dr. Gutstein was a treating physician, that his report and actual medical records were provided to D, as well as an authorization. Also, the 3101(d) disclosure was served three weeks before trial (late but not horribly late) and wasn’t necessary under the decisional law. D on the other hand, claimed that Dr. Gutstein was purely an expert witness (based on P’s recall that he had been treated by only one doctor), with which the trial court agreed. The First Department reversed, writing:

“It is unclear from the trial record whether Dr. Gutstein was an expert witness as to whom CPLR 3101(d) notice was required, or plaintiff's treating physician, as to whom no notice was required 84

©Doctors & Their Records at Trial Benedene Cannata, 2015 (see e.g. Breen v Laric Entertainment Corp., 2 AD3d 298, 299–300 [2003] ). Moreover, it is clear that the prejudice to defendants arose from the lack of proper authorizations for medical records and not from the report annexed to plaintiff's expert notice. Accordingly, Gutstein's testimony as to causation should not have been precluded on the ground of plaintiff's late service of the notice.”

2d Dept

Overeem v Neuhoff, 254 AD2d 398 (2d Dept 1998) The trial court precluded a subsequent treating physician from offering expert testimony that the injuries he surgically repaired had been caused by prior surgery performed by D , on the ground that P had failed to identify the physician as an expert as required by CPLR 3101(d). P had, however, exchanged the physician's medical reports as required by the medical exchange rule. The preclusion was error. Because the witness was a treating physician, rather than an expert retained to give opinion testimony at trial, CPLR 3101 (d) doesn’t bar the admission of his expert testimony. Moreover, he could testify to the cause of P’s injuries even though he had expressed no opinion regarding causation in the previously-exchanged reports.

Mantuano v Mehale, 258 AD2d 566 (2d Dept 1999) Defendants were permitted to call P’s treating physician and elicit expert testimony without being required to identify him or her as an expert witness. As the Second Department noted:

“In this unified trial, the court should not have precluded plaintiff's treating physician, who was called as a witness by D s, from offering his opinion as to whether plaintiff's stroke was related to the injuries he sustained in the accident. CPLR 3101(d)(1)(i) requires a party to identify the expert witnesses who are expected to be called at trial, and to disclose the subject matter on which the expert is expected to testify. However, this rule applies only to experts retained to give testimony at trial, and not to treating physicians.” (Emphasis added.)

The treating physician opined as to causation of the injuries.

Perrone v Grover, 272 AD2d 312 (2d Dept 2000) Although the particular expert testimony in this medical malpractice action fell short of establishing a prima facie case, the decision seems to indicate, in dicta, that a

©Doctors & Their Records at Trial Benedene Cannata, 2015 treating physician may testify as to deviations from accepted medical practice. The court wrote: "Although a treating physician can provide expert opinion testimony … the testimony of plaintiff Joann Perrone's treating cardiologist was insufficient to demonstrate defendant Dr. Charles Block deviated from an accepted standard of care …"

This appeal was from a summary judgment motion. One might argue, however, that since only evidence that is admissible at trial is properly considered a motion for summary judgment, the principle should be applicable to trial as well.

Krinsky v Rachleff, 276 AD2d 748 (2d Dept 2000) This was a medical malpractice action. It was held reversible error to disallow the expert opinion testimony of a treating physician:

“The trial court also precluded the Krinsky's pulmonologist, Dr. Paul Hamlin, a defense witness, from testifying whether the abnormality or foreign matter he observed in Krinsky's lung during the bronchoscopy was a piece of the endotracheal tube. This was error. In addition to testifying to his or her own observations, a treating physician may give expert opinion testimony (see, Perrone v Grover, 272 AD2d 312) and may do so without prior notice pursuant to CPLR 3101(d).”

P was entitled to a new trial.

Warner v Adelphi University, 283 AD2d 486 (2d Dept 2001) Ds were permitted to call P’s treating physician and elicit expert testimony without being required to identify him or her as an expert witness.

Hunt v Ryzman, 292 AD2d 345 (2d Dept 2002) “Contrary to defendant's contention, the trial court properly permitted plaintiff 's treating physicians to testify at trial, notwithstanding plaintiff's failure to provide him with information regarding those physicians pursuant to CPLR 3101(d)(1)(i). It is well settled that the disclosure requirements of CPLR 3101(d)(1)(i) do not apply to treating physicians.”

Malanga v City of New York, 300 AD2d 549 (2d Dept 2002) The trial court erred in precluding P’s treating physicians from providing testimony with respect to the cause of P’s injuries on the ground that P has failed to serve a 3101(d) response. Ds received sufficient notice of both doctors' testimony through the exchange of their reports.

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Butler v Grimes, 40 AD3d 569 (2d Dept 2007) The trial court properly permitted P’s treating physician to testify regarding future surgery, notwithstanding a lack of prior notice pursuant to CPLR 3101(d).

Lucian v Schwartz, 55 AD3d 687 (2d Dept 2008) The trial court properly allowed P’s treating neurologist to testify for the defense as to the issue of causation, without any 3101(d) disclosure.

Logan v Roman, 58 AD3d 810 (2d Dept 2009) CPLR 3101(d)(1)(i) is not applicable to treating physicians. P’s treating doctor could testify to the cause of the injuries even if he had expressed no opinion regarding causation in his previously-exchanged medical report.

Jing Xue Jiang v Dollar Rent a Car, Inc., 91 AD3d 603 (2d Dept 2012) “A treating physician may give expert opinion testimony and may do so without prior notice pursuant to CPLR 3101(d).” 3d Dept

Beck v Albany Medical Ctr. Hosp., 191 AD2d 854 (3d Dept 1993) Ds in this medical malpractice action were permitted to call P’s treating physician and elicit expert testimony without being required to identify him or her as an expert witness. Note -- this case would appear to be overruled by Norton v Nguyen.

Norton v Nguyen, 49 AD3d 927 (3d Dept 2008) The trial court did not improperly limit D’s proof by curtailing the testimony of a nurse who treated P at the hospital. The court allowed the nurse to testify as to her observations, but not to give any opinions or expert testimony (based on her 36 years of nursing experience), because D did not include the nurse in the 3101(d) disclosure. This ruling, according to the Third Department, was correct. CPLR 3101(d)(1)(i) requires disclosure of any medical professional, even a treating physician or nurse, who is expected to give expert testimony (citing Chapman v State of New York, 189 AD2d 1075, 1075 [1993]) . Because D did not disclose the nurse as an expert, the court appropriately permitted her to provide factual testimony but not opinions. Note that Beck v Albany Medical Center was not mentioned in the opinion.

Note: As of the date of this writing (May 2015), neither Beck nor Norton have been cited on the issue of the need (or not) of a 3101(d) disclosure for a treating medical care provider.

©Doctors & Their Records at Trial Benedene Cannata, 2015 4th Dept

Wylie v Consol. Rail Corp., 229 AD2d 966 (4th Dept 1996) Apparently it doesn’t matter whether the physician treated P many times, or even one time. Here the treating physician was a radiologist who had done nothing more than interpret a CAT scan taken of P a few weeks after the accident, and who would have testified that the CAT scan showed no evidence of a herniated disk. P disputed whether the radiologist was a treating physician, but the Fourth Department held that he was. A new trial was granted as the trial court had improperly precluded D from calling this treating physician.

Stark v Semeran, 244 AD2d 894 (4th Dept 1997), lv dism 91 NY2d 956 (1998) In this medical malpractice action the trial court improperly precluded D from having P’s treating physician testify as to the cause of the infant P’s death. The result was a new trial.

Rook v 60 Key Centre, 239 AD2d 926 (4th Dept 1997) “(W)e reiterate that CPLR 3101(d) (1) applies only to experts retained to give opinion testimony at trial, not to treating physicians, other medical providers, or other fact witnesses."

Casey v Tan, 255 AD2d 900 (4th Dept 1998) Ds were permitted to call P’s treating physician and elicit expert testimony without being required to identify him or her as an expert witness. The treating physician was allowed to testify that D ’s malpractice (if it was malpractice) in failing to diagnose cancer was not a proximate cause of the decedent’s death.

Bonner v Lee , 255 AD2d 1005 (4th Dept 1998) The treating physician here testified regarding her interpretation of P’s MRI. (The decision does not indicate whether the physician was a radiologist.) D objected on the grounds that P had failed to comply with both CPLR 3101(d) and 22 NYCRR 202.17. The court held that because the witness was one of P’s treating physicians, CPLR 3101(d) did not apply. As for the medical exchange rule, the court found the objection had not been preserved for appellate review.

Rokitka v Barrett, 303 AD2d 983 (4th Dept 2003) A child was shot in the jaw by another child with a BB gun. The trial court properly permitted the child’s treating physician to give opinion testimony as to the child's need for further dental treatment. Citing the Second Department case of Krinsky v Rachleff (infra), the Fourth Department held that P was not required to provide prior notice of such testimony under CPLR 3101(d). 88

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Andrew v Hurh, 34 AD3d 1331 (4th Dept 2006) Ds weren’t required to provide P with a CPLR 3101(d) disclosure concerning P’s treating doctor.

Lauto v Catholic Health Sys., Inc., 125 AD3d 1352 (4th Dept 2015) In this malpractice case involving a surgical instrument left in P's body, the Fourth Department held that any error in precluding D's nursing staff from providing opinion testimony at trial was harmless. It’s the concurring opinion that raises the question of whether the Fourth Department, in accordance with the Third Department’s Norton v Nguyen (above) requires a 3101(d) to be served should a treating health care provider or not. The entirety of that opinion, written by Justice DiJoseph, clearly indicates that he doesn’t feel that the 3d Department’s Norton should be followed.

“I concur in the result reached by the majority, but I write separately to address defendant's contention, with which I agree, that Supreme Court erred in precluding its nursing staff from providing opinion testimony at trial. Although I agree with the majority that the error is harmless, I note that “CPLR 3101(d)(1) applies only to experts retained to give opinion testimony at trial, and not to treating physicians, other medical providers, or other fact witnesses” (Rook v 60 Key Ctr., 239 AD2d 926, 927) and, thus, the court's reliance upon CPLR 3101(d)(1) in precluding opinion testimony from the nurses was misplaced.”

Koren v Weihs, 201 AD2d 268 (1st Dept 1994) Affirming a verdict for P in a psychiatric malpractice case and crediting the testimony of a treating physician, the court wrote:

“The opinion of decedent's treating physician, who had examined her once weekly for over a year and reviewed her hospital and private physician therapy records, was not merely conclusory…, and was not obtained solely for testimonial purposes …, and therefore sufficed as to both the departures from accepted standards of medical care and the cause of suicide.

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Examining physicians

Clearly, CPLR 3121 and “the medical exchange rule” 22 NYCRR 202.17 apply to examining physicians. Cases highlighting the necessity of complying with these sections are set forth in Serve Medical Exchange, supra.

Wagner v Kingston Hospital, 182 AD2d 616 (2d Dept 1992) In this medical malpractice case, P’s medical expert was also his examining physician. P conceded that under CPLR 3121 (b) he was required to serve the doctor’s report on Ds. However, he argued that he was entitled to withhold the doctor’s expert identity under CPLR 3101(d) (1)(i). Held: "Permitting P to serve a copy of the report without his or her expert's name and address redacted is an appropriate accommodation of the competing purposes of broad disclosure under CPLR 3121 (b) and protection of the expert’s identity under CPLR 3101(d) (1)(i).”

Anderson v Dainack, 39 AD3d 1065 (2d Dept 2007) Defense doctor should have been allowed to testify regarding the report by one of P’s examining physicians (assumedly a no-fault exam).

“Next addressing Supreme Court's ruling that prevented defendant's expert from testifying about an independent medical exam (hereinafter IME) report completed by a physician hired by plaintiff who was not going to testify at trial, it has been held that such expert may be permitted to rely upon otherwise inadmissible hearsay evidence … if the evidence is deemed reliable "as a basis for (such) expert opinion in the given field" …. Yet, such evidence "may not be the 'principal basis' for an opinion on the ultimate issue in the case, and may only form a link in the chain of data which led the expert to his or her opinion

“Here, defendants' expert conducted his own examination of plaintiff and reviewed a number of plaintiff's medical records beyond the disputed IME. For this reason, he had a sufficient basis for his opinion of which the disputed IME was but "a link in the chain of data upon which (he could have) relied."

©Doctors & Their Records at Trial Benedene Cannata, 2015 Is a 3101(d) Disclosure Necessary for an Examining Physician?

There don’t seem to be any cases that specifically hold that, having complied with the medical exchange rule ( 22 NYCRR 202.17), and CPLR 3121, a party must also serve a 3101(d) response. However, the following seem to imply that serving a 3101(d) technically is required, but failure to do so is likely to be forgiven.

St. Hilaire v White, 305 AD2d 209 (1st Dept 2003) D’s outright failure to serve a 3101(d) response was excused. The expert was the neurologist who had examined P on D's behalf. The doctor’s report was exchanged pursuant to CPLR 3121 and the medical exchange rule. The court found D's noncompliance with 3101(d) was unintentional and allowed the expert to testify. Moreover the court offered P an adjournment if necessary, and directed D to bear the cost of any rebuttal witness, averting any prejudice.

Rodriguez v Pontillo, 278 AD2d 400 (2d Dept 2000) P was required to disclose report prepared by his expert medical witness, who had also examined him, and also to provide authorizations to obtain records and reports that were referred to in the medical report and would be offered at trial.

Fishkin v Massre, 286 AD2d 749 (2d Dept 2001) Under the (unstated) circumstances of this case, despite D's failure to strictly comply with CPLR 3101(d), the trial court properly allowed D's examining physician to testify that the injuries to P’s right shoulder and elbow, and the resulting surgeries, were not proximately caused by the subject accident. P could not claim surprise or prejudice as a result of the challenged testimony, as "the issue of causation was implicit on the question of damages.”

Cruz v Gustitos, 51 AD3d 963 (2d Dept 2008) The trial court shouldn't have precluded D's two examining doctors (an orthopedist and a radiologist) from testifying for failure to serve a 3101(d) response. D had exchanged the doctors' medical reports, which essentially complied with 3101(d)(1), P wasn’t prejudiced, and there was no willful failure to disclose.

Mazurek v Home Depot USA, Inc., 303 AD2d 960 (4th Dept 2003) The defense expert (apparently an examining physician) was precluded from testifying as to P’s previous similar injuries because of the untimeliness of D’s supplemental expert disclosure and counsel's inability to demonstrate good cause for the inclusion of that testimony. Notably, the court doesn’t state that a 3101(d)

©Doctors & Their Records at Trial Benedene Cannata, 2015 disclosure is necessary before one can call an examining physician. It seems that here P didn’t even make that argument.

Ruzycki v Baker, 9 AD3d 854 (4th Dept 2004) The court held that preclusion for failure to comply with CPLR 3101(d) is improper where there is no evidence of intentional or willful failure to disclose and no prejudice to the party seeking disclosure. Although D did not respond to P’s demand for expert disclosure until the middle of trial, P s had been provided with the IME report 18 months earlier, and were therefore on sufficient notice of the IME physician's proposed testimony. Thus, P could claim neither surprise nor prejudice. Wall v Shepard, 53 AD3d 1050 (4th Dept 2008) No error to allow P’s examining physician to testify notwithstanding failure to submit a 3101(d) disclosure. There was no evidence of intentional or willful failure to disclose, nor did D establish prejudice.

Medical Examiner (ME) as Witness

A medical examiner (as in coroner) is decidedly not a “treating physician.” And although he does examine the body, he is not seen as an “examining physician.” Rather, the medical examiner is seen as a public officer who, under CPLR 4520 is required to make and file an autopsy report and his or her report is “prima facie evidence of the facts stated.”

Broun v Equitable Life Assur. Socy. of U.S., 69 NY2d 675 (1986) Held: Abuse of discretion (amounting to reversible error) to exclude ME's opinion that decedent's death was a suicide. Also, the cause of death on the death certificate should not have been redacted, the court citing County Law 674 (3) (describing the duties of a coroner); CPLR 4520 (see above); and Public Health Law 4103 (3) (admissibility of vital statistics).

Coakley v Parkway Hosp., 103 AD3d 680 (2d Dept 2013) Held: Reversible error to have excluded an ME’s opinion relating to decedent's “probable dehiscence of ligature.” The ME was a nonparty witness under CPLR 3101 (a), so a CPLR 3101(d) disclosure was not necessary. Moreover, the ME’s testimony would not have been cumulative.

People v Wyant, 98 AD3d 1277 (4th Dept 2012) A physician employed by the Monroe County Medical Examiner's Office was qualified to render an opinion as to the cause of a murder victim's death. She had performed almost 500 autopsies. 92

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For cases about forensic pathologists, see Doctors Testifying as To Causation.

Expert Physicians

Meyer v Board of Trustees of the New York City Fire Dept., Article 1-B Pension Fund by Safir, 90 NY2d 139 at 145-146 (1997) “(I)t is well settled that a nonexamining physician is competent to testify as a medical expert in a civil or criminal trial as to the cause of a particular medical condition based upon, for example, inspection of the patient's medical records or the expert's interpretation of diagnostic tools such as X rays and MRI films.”

CPLR 3101(d) disclosure is necessary but service of a report by a “pure” (i.e. non-examining, non-treating) expert is not

Putchlawski v Diaz, 192 AD2d 444 (1st Dept 1993) While service of a 3101(d) is necessary, service of the report is not. When a party retains an expert solely to review records and testify at trial, under CPLR 3101 (d) the party need not necessarily provide the expert’s report to the adversary.

Byczek v City of New York Dept of Parks, 81 AD2d 823 (2d Dept 1981) In this case tried before 3101(d) was enacted, the trial court should not have precluded an expert physician from testifying. As the doctor had never examined or treated P , but was going to testify as an expert on the basis of records in evidence, the medical exchange rule (then at 22 NYCRR 672.8) did not apply.

Dorato v Schlip, 130 AD2d 348 (3d Dept 1987) Ds in this medical malpractice action sought the reports of physicians retained by P as experts for litigation. But under CPLR 3101(d), the reports are non-discoverable.

“Since the reports, containing the opinions of experts, were concededly prepared for litigation, and since there is no claim of injustice or undue hardship if the reports are withheld, CPLR former 3101(d) clearly precludes disclosure of the medical reports unless CPLR 3121 is applicable. (Emphasis added.)

©Doctors & Their Records at Trial Benedene Cannata, 2015 Therefore, unless the expert retained to review records also examines P, the report does not have to be provided.

Kelly v Tarnowski, 213 AD2d 1054 (4th Dept 1995) P’s expert testified that he would be rendering an opinion as to the nature and extent of P’s injuries based on his review of the treating physician’s records. This would have been proper.

“A medical expert may testify regarding a party's injury without an exchange of his medical report if the expert's testimony is based solely upon the records already in evidence and not upon his examination of the injured party (Markey v Eiseman, 114 AD2d 887, 888; Byczek v City of New York Dept of Parks, 81 AD2d 823).

However, while on the stand, the expert stated his opinion was also based on his examination of P earlier that day. Over the objection of defense counsel, the court then permitted the doctor to examine P yet again, this time in front of the jury. P did not furnish any medical report of the examination earlier that day because, of course, the expert never prepared one. But “that did not obviate plaintiff's obligation under 22 NYCRR 202.17 to provide one to defendant (see, Ciriello v Virgues, 156 AD2d 417, 418). Otherwise, the rule would be vitiated (see, Wonsch v Snyder, 53 AD2d 1031).” If only P’s attorney had made some showing of “good cause.” The Fourth Department acknowledged that if that had been the case, the court could have allowed the testimony "in the interests of justice and upon a showing of good cause."

The Defendant Physician

Of course, no medical exchange or 3101(d) disclosure is necessary for the party defendant physician to testify at trial. To call the defendant physician on the plaintiffs direct case, the plaintiff’s attorney need only serve defense counsel with the appropriate subpoena (CPLR 2303-a). In many instances (depending on the relationship between counsel), a simple phone call to defense counsel will dispense with the need of the subpoena. Particulars as to the defendant physician on the stand are discussed in the sections that follow.

©Doctors & Their Records at Trial Benedene Cannata, 2015 Trial Testimony The Treating Physician on the Stand

Below is just a small sampling of case blurbs involving treating physicians on the stand. For more case blurbs, see the following sections. The word “treating” will be in bold.

1st Dept

Padilla v Freelund, 7 AD3d 258 (1st Dept 2004) Here it was held that the trial court properly declined to permit P’s treating physician to refer to an MRI film in evidence where P’s 22 NYCRR 202.17 exchange didn’t state that the treating physician had based his diagnosis on his reading of the MRI film. Given all the other cases in these materials, this holding doesn’t seem right. The following, taken from P’s appellate brief, elucidates the circumstances, which only confirms that we should be scratching our heads over this one.

“The court also observed that P’s treating physician, a neurologist, had not been noticed as an expert in the field of interpreting MRI films. The trial court ruled, over P’s counsel's objection, that Dr. Guttstein could not testify to or interpret the MRI films taken of P’s back that revealed a herniation. The MRI films were certified and put into evidence. Although the trial court stated that Dr. Guttstein was qualified to read and interpret MRI films , it precluded Dr. Guttstein from testifying because P failed to satisfy notice requirements pursuant to 22 NYCRR 202.17. Specifically, the trial court agreed with Ds that because Dr. Guttstein was a treating physician and he never stated in his medical reports that he reviewed the MRI films in reaching his diagnosis (although he read the MRI reports), he would not be permitted to review the films for the first time in court. During questioning, Dr. Guttstein testified that he ordered the MRIs. Although he never specifically indicated in his reports that he reviewed the MRIs films, he stated in his report that he reviewed the MRI reports and made a diagnosis based upon those reports. He further established his qualifications to read and interpret MRIs, having done so two to ten times a week for 22 years.” (Folio references removed.)

Is this case an aberration? Note that as of the day of this writing (May 2015) this 95

©Doctors & Their Records at Trial Benedene Cannata, 2015 case hasn’t been cited by any Appellate Division.

Thomas v 14 Rollins Street Realty Corp. 25 AD3d 317 (1st Dept 2006) The trial court properly precluded P’s treating physician from testifying about the need for future knee replacement surgery, where such surgery was not mentioned in either P’s bill of particulars or expert disclosure statement, or even in his physician's own records, and where Ds could have been expected to retain their own knee specialist to assess possible future knee surgery.

Hamer v City of New York, 106 AD3d 504 (1st Dept 2013). P tripped and fell on a raised piece of sidewalk and broke her leg. The trial court shouldn’t have precluded her treating doctor from testifying about a second leg fracture. The doctor's records were fully disclosed. And although they didn’t causally relate the first fracture to the second, the supplemental bill of particulars indicated a causal link sufficient to place D on notice of the theory of causation.

2d Dept

Scott v Mason, 155 AD2d 655 (2d Dept 1989) “A treating physician may testify to the history obtained from the patient if it is germane to diagnosis and treatment.” Here the limited history testified to by the treating physician -- that P’s van had been struck by some form of motor vehicle -- was medically relevant to diagnosis and treatment, and was admissible.

Crisci v Sadler, 253 AD2d 447 (2d Dept 1998) "It is well settled that a treating physician ‘may testify to the history obtained from the patient if it is germane to diagnosis and treatment.’” Here the court's exclusion of the treating doctor's testimony as to the infant P’s medical history was improper. For this and other reasons, P was granted a new trial.

Stylianou v Calabrese, 297 AD2d 798 (2d Dept 2002) P’s treating physician shouldn’t have been permitted to testify regarding future surgery. He claimed that the shoulder surgery he’d performed was successful, and that the shoulder was stable. But he never stated a basis for the opinion that P would need a shoulder replacement in the future, nor did he state his opinion with any degree of certainty. The award for the cost of future surgery was thus speculative and unsupported by competent evidence, and not permitted to stand.

Hammond v Welsh, 29 AD3d 518 (2d Dept 2006) Trial court properly permitted a treating physician to testify concerning the

©Doctors & Their Records at Trial Benedene Cannata, 2015 likelihood that P would need future knee replacement surgery.

Hughes v Webb, 40 AD3d 1035 (2d Dept 2007) No medical report required to be served prior to treating physician's testimony as to consequences of P’s injury (i.e. permanence) described in the previously-served medical records and claimed in P’s bill of particulars. Trial court erred in precluding treating physician from testifying as to permanence of P’s injuries, based on a recent examination, on the ground that P had failed to serve a report pursuant to the medical exchange rule. "There could be no claim of surprise or prejudice engendered by this testimony.” P’s bill of particulars clearly included allegations that the ankle fracture resulted in permanent injuries. "(P)ermanency cannot be considered an injury or condition." Consequently, no medical report was required to be served prior to the physician's testimony, as no injuries or claims were being made, and the physician was to testify merely to the consequences of the injury as described in the previously served medical records.

3d Dept

Chase v OHM, LLC, 75 AD3d 1031 (3d Dept 2010) The court did not abuse its discretion in permitting a treating physician to testify as to the prognosis and permanency of P’s injuries despite the absence of a narrative report. “There could be no claim of surprise or prejudice inasmuch as Wiener's testimony related only to the consequences and permanency of the injuries resulting from plaintiff's fall that were identified in the previously-disclosed medical records, and for which defendants' own expert provided similar testimony.”

4th Dept

Carnevale v Elizabeth Wende Breast Care, LLC, 106 AD3d 1516 (4th Dept 2013) Error in allowing P's treating physician to testify as to her opinion concerning the merits of P’s medical malpractice action was harmless because the court found that it didn’t “affect the result” of the trial.

Hixson v Cotton-Hanlon, Inc., 60 AD3d 1297 (4th Dept 2009) Although the trial court erred in precluding an assumedly treating orthopedic surgeon from testifying as to P’s future need for orthotics, that error was harmless because another witness provided that testimony.

©Doctors & Their Records at Trial Benedene Cannata, 2015 The Examining Physician on the Stand

Below is just a small sampling of cases involving examining physicians on the stand. For more case blurbs, see the following sections. The word “examining ” will be in bold.

Weigert v Baker, 217 AD2d 1011 (4th Dept 1995) P testified to the history of her accident, her symptoms, her injury, her disability, and her treatment. Her examining physician/medical expert testified that he had reviewed the medical and hospital records and an MRI report. He testified, without objection, to P’s complaints of pain and disability, her medical history and course of treatment, including surgery and diagnostic tests. He also testified to his own findings from an examination he had performed two months before trial. After all this, the trial court refused to allow the physician to testify to his own diagnosis of the injury and whether P’s complaints were consistent with a herniated disc. This was error. The proof relevant to P’s injury was in evidence. It didn’t matter that the witness wasn’t a treating physician, or that he didn’t examine the x-rays or MRI films himself – those facts went to the weight of the testimony, not to its admissibility.

Vander Wel v Palazzo, 155 AD2d 387 (1st Dept 1989) P’s examining physician, an orthopedic surgeon, examined her six years after the claimed injury, and took x-rays. At trial, the trial judge refused to allow the x-rays into evidence. This was error. The physician was there to authenticate and interpret the x-rays and to be cross- examined. Moreover, his diagnosis and prognosis were certainly relevant to the claim of permanent injury.

Limitation on the Testimony of Plaintiff’s Examining Physician

A doctor who has examined P for the purposes of litigation may not testify as to P’s statements to him concerning history of injury or as to P’s present complaints. However a doctor who examined P for some other purpose is likely to be treated differently on the stand.

Davidson v Cornell, 132 NY 228 (1892) Here a physician examined a seemingly paraplegic P a few days before trial. They had a conversation as to whether P had been able to have sexual relations since the accident.

©Doctors & Their Records at Trial Benedene Cannata, 2015 “The rule of admissibility of statements made to physicians by persons who have been physically injured or are suffering from disease is not an unqualified one. They must related to present, and not past, pain and suffering.… And it has been held that their declarations, after controversy has arisen, made at a medical examination then had for the purpose of preparing evidence, and not for medical treatment, were incompetent…. In Matterson v Railroad Co., 35 NY 487, it was held that expressions of pain and suffering made by the injured person to physicians when they were examining him were competent evidence, notwithstanding the examination was made by them with a view to testifying as to the result of it in a suit then pending. The same was said in Kent v Town of Lincoln, 32 Vt. 591. It may be seen that, when attended by a physician for the purpose of treatment, there is a strong inducement for the patient to speak truly of his pains and sufferings, while it may be otherwise when medically examined for the purpose of creating evidence in his own behalf. It is therefore that the weight of judicial authority is to the effect that the statements expressive of their present condition are permitted to be given as evidence only when made to a physician for the purposes of treatment by him.”

“In the present case the declarations in question of plaintiff were not instinctive, nor were they made to the physician with a view to medical treatment. They consisted, not of examination of present pain or suffering, but were plaintiff's statements, so far as called for by the doctor, of the effect upon him of the injury and the consequences which had followed in such respects from the time it occurred,-a period of nearly 15 months. This was hearsay, and is very different from that of a medical witness as to the expressions by a patient or person suffering from injury or disease, indicating pain or distress or expressive of the present state of his feelings in that respect. We think the reception of the evidence was error; and, although plaintiff testified to the truth of the statements made to the doctor, his evidence did not cure the error.”

1st Dept

Nissen v Rubin, 121 AD2d 320 (1st Dept 1986) “Since credibility was the key issue in this case with reference to the location and manner of plaintiff's accident and the extent and severity of his alleged injuries, it was 99

©Doctors & Their Records at Trial Benedene Cannata, 2015 highly prejudicial for the trial court to have permitted plaintiff's two expert witnesses and nontreating physicians, Doctors Klinger and Gannon, to testify concerning the history of the accident and plaintiff's physical complaints as related to them by plaintiff himself. It is a well-settled principle of law in New York that a nontreating physician, hired only to testify as an expert witness, may not state the history of an accident as related to him by P or testify as to plaintiff's medical complaints…. To do so permits P to unfairly buttress his claim for physical injuries with the added weight of an expert witness's testimony.”

Easley v City of New York, 189 AD2d 599 (1st Dept 1993) A non-treating but examining physician, hired only to testify as an expert witness, cannot testify about the history of an accident as related to him by P. Nor can he testify concerning P’s medical complaints. “An expert witness is not precluded from stating his medical opinion where he has examined the injured party and a review of the record supports his conclusion. A non-treating physician, hired only to testify as an expert witness, cannot testify about the history of an accident as related to him by P (Nissen v Rubin, 121 AD2d 320, 321). Nor can he testify concerning plaintiff's medical complaints. This rule is designed to prevent unfair bolstering of a party's testimony as to the cause and extent of his injuries (Daliendo v Johnson, 147 AD2d 312, 320). Dr. Sherman never examined plaintiff. His opinion was based solely upon a conversation with plaintiff's attorney on the morning of his scheduled appearance and concededly incomplete medical records. The central issue in this case is the credibility of plaintiff's testimony with respect to the cause of his injuries. It was therefore highly prejudicial to allow plaintiff's non-treating expert witness to testify about the history of the injury and to speculate about plaintiff's current physical condition.”

Rivera v City of New York, 212 AD2d 403 (1st Dept 1995) Affirming a verdict for P and vindicating the proper scope of testimony of an examining physician, the court wrote:

“Even without the testimony of her (examining physician), the hospital record together with plaintiff's testimony provide a nexus between the fall and the injury sustained, thereby establishing proximate cause and furnishing a basis for expert testimony. [The examining physician]’s testimony was based upon facts personally known to him as the result of an examination conducted in 1987 … and is fully supported by x-rays admitted into evidence …. The expert's testimony did not relate any part 100

©Doctors & Their Records at Trial Benedene Cannata, 2015 of the history of the accident …and is not subject to preclusion as unfair bolstering… The assessment of the value of this testimony is therefore an issue for resolution by the trier of fact …, and any apparent discrepancy between the "irregularity" noted by the expert and the injury documented by the hospital record goes to the weight and not the admissibility of his testimony …. This discrepancy might have been clarified had the court granted plaintiff's motion for a continuance to obtain the testimony of the treating physician and to recall the expert witness.”

Singh v Catamount Development Corp., 21 AD3d 824 (1st Dept 2005) Note that the examining physician this case apparently wasn’t retained for the purpose of litigation. Rather, the physician was an orthopedic specialist with whom P had consulted on one occasion to obtain, inter alia, a second opinion as to contemplated surgery.

“We reject defendants' argument that such witness was a nontreating physician who was improperly permitted to testify as to the history of plaintiff's accident and his medical complaints. Such witness's testimony concerning the history of plaintiff's ski injuries, including the corrective medical procedures performed and his opinion of plaintiff's prognosis, was properly received into evidence as based not upon plaintiff's statements to him, but rather upon his own review of the medical reports, x-rays, CAT scans and other diagnostic tests admitted into evidence ….. The witness merely educated the trier of fact of the nature and extent of the surgical procedures plaintiff underwent, and the objective signs of developing disabilities in the shoulder and hip.”

2d Dept

De Luca v Kameros, 130 AD2d 705 ( 2d Dept 1987) An doctor who had examined P solely in anticipation of trial should not have been allowed to testify at trial as to her complaints to him. However, medical experts for both sides confirmed the claimed injuries through objective testing, and defense counsel committed a similar impropriety by eliciting hearsay from one of his experts during direct examination. Thus, any improper bolstering of P’s case was harmless.

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Adkins v Queens Van-Plan, Inc., 293 AD2d 503 (2d Dept 2002) The Supreme Court properly permitted P s' examining expert to state his opinion based on his examination and his review of MRI films that were in evidence. But the court should not have allowed the examining: • to testify as to P’s medical complaints • to summarize and read statements and findings contained in the reports and records of P's treating physicians where the reports and records were not in evidence and the physicians did not testify at trial. A new trial was granted.

Kerr v Vinokur, 37 AD3d 418 (2d Dept 2007) Trial court properly precluded certain testimony by one of P’s experts, because it was predicated largely on the elicitation of P’s subjective complaints to someone other than one of her treating physicians (i.e., an examining physician) who was performing tests solely in anticipation of litigation.

The Expert Physician on the Stand

Although this section concerns itself with “experts,” as noted previously, every physician is an expert by virtue of his educational degree and experience. Consequently, the cases in this section apply not only to “pure” experts (i.e., who testifies purely on a review of records), but also to the treating, examining, and defendant doctors. Note that the words “treating”, “examining” and “expert” appear in bold text.

Zarnoch v Williams, 83 AD3d 1373 (4th Dept 2011) In this MVA case involving multiple broken bones, P’s expert was properly permitted to testify as to the likelihood of future surgery. The expert was qualified and his testimony was in the acceptable form of an opinion concerning the need for future medical treatment.

Expert Qualifications and Competency

Testimony Allowed (or That Should Have been Allowed)

Escobar v Allen, 5 AD3d 242 (1st Dept 2004) P claimed that a defendant physician and hospital negligently performed a bunionectomy, resulting in severe limitation of the function of toes, and arthritis. P’s 102

©Doctors & Their Records at Trial Benedene Cannata, 2015 expert was a podiatrist. After P’s opening statement, Ds moved to dismiss the complaint on the basis that P’s expert was not competent to testify to their alleged malpractice and, as a result, P would not be able to establish a prima facie case. The trial court "very, very reluctantly" granted Ds' motion. Following the Fourth Department decision in Parese v Shankman (see infra), the First Department held that, under the facts of this case, it was premature to preclude the podiatrist from offering an opinion without first determining his educational and practical experience. As in Parese, the podiatrist apparently was not only licensed to treat the identical condition that was plaguing P, but had performed the same type of procedure that Ds had performed. Consequently, dismissal of the complaint was improper.

Kaplan v Karpfen, 57 AD3d 409 (1rst Dept 2008) “Plaintiffs’ psychologist and psychiatrist failed to demonstrate that they possessed sufficient knowledge or expertise to testify outside their specialties as to either the existence and cause of plaintiff’s alleged brain injury or defendants’ alleged deviation from the accepted standard of care for pediatricians or obstetricians and gynecologists.”

People v Paun, 269 AD2d 546 (2d Dept 2000) It was not beyond an emergency room physician’s expertise to testify as to signs of trauma to a woman's body following a rape. The court noted: "(p)ractical experience may properly substitute for academic training in determining whether an individual has acquired the training necessary to be qualified as an expert."

Steinbach v Stern, 2 AD3d 709 (2d Dept 2003) P claimed D podiatrist caused a burn injury to her calf during a surgical procedure, then treated the burn negligently, exacerbating the condition. On D's application, the trial court dismissed the case, ruling that only a medical doctor, and not a podiatrist, could offer the expert opinions necessary to sustain P’s burden of proof. The Appellate Division reversed, holding that "the trial court abused its discretion in disqualifying the proffered expert because he did not have a medical degree. The Court was required to assess his qualification as an expert based on his professional background, training, study, and experience. The court did not attempt to make this kind of assessment and erroneously ruled that only a physician with a medical degree could testify with respect to causation." Thus, although podiatrists are only licensed to treat below the ankle, P’s expert, who had experience in diagnosing and treating burns during his residency, could have testified. Precluding this expert and dismissing the complaint constituted reversible error.

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Moon Ok Kwon v Martin, 19 AD3d 664 (2d Dept 2005) Trial court refused to allow D’s neurologist to opine as to MRI films that were in evidence, on the ground that he wasn’t a radiologist. This was error. The doctor’s specialization goes to weight, not admissibility, of his opinion.

López v Gem Gravure Company, 50 AD3d 1102 (2d Dept 2008) A physician board-certified in internal medicine (as opposed to being a nephrologist) was qualified to render opinion as to relation of P’s renal failure to his exposure to chemicals.

People v Morehouse, 5 AD3d 925 (3d Dept 2004) A sexual assault nurse examiner was qualified, through training and actual experience, to opine that the complainant's injuries were consistent with forcible compulsion. The court noted that expert medical opinion need not come from a licensed doctor.

People v Monroe, 307 AD2d 588 (3d Dept 2003) A licensed nurse practitioner in pediatric and adolescent gynecology is qualified to testify as a medical expert on matters involving child sexual abuse.

People v Menegan, 107 AD3d 1166 (3d Dept 2013) A board-certified toxicologist was properly qualified as an expert witness in a nonjury DWI trial. The court was satisfied that the expert “possessed sufficient education, training and experience from which County Court could infer that [his] opinion would be reliable.”

Parese v Shankman, 300 AD2d 1087 (4th Dept 2002) “As a general rule, when the proposed opinion testimony of a witness who is not a medical doctor is against a defendant who is a medical doctor, the opinion of the witness ‘as to the course of treatment defendant should have undertaken (is) beyond his professional and educational experience and cannot be considered competent medical opinion on (the) issue of defendant's negligence’ (Jordan v Glens Falls Hosp., 261 AD2d 666, 667.) Here, although the podiatrist is not a medical doctor, both he and defendant, an orthopedic surgeon, are licensed to treat the type of injury sustained by plaintiff, and they perform the same surgical procedure at issue in this case. In the absence of sufficient information concerning the professional and educational experience of the podiatrist, we conclude that it was premature for the court to preclude his opinion testimony.”

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©Doctors & Their Records at Trial Benedene Cannata, 2015 People v Hamilton, 96 AD3d 1518 (4th Dept 2012) A victim’s treating physician was properly permitted to testify that a projectile from a shotgun caused the victim's injuries. The physician had been employed as a trauma surgeon since 1991, was board certified in critical care and general surgery, and treated several hundred patients with gunshot wounds. He thus possessed the “the requisite skill, training, education, knowledge or experience” to provide a reliable opinion.

Testimony disallowed (or that should have been disallowed)

Williams v Halpern, 25 AD3d 467 (1st Dept 2006) D argued that a pathologist wasn’t qualified to opine as to how and when P contracted hepatitis C. (Apparently D would have accepted an internist or epidemiologist.) Held: pathologist's qualifications went to the weight, rather than the admissibility, of his testimony.

LaFurge v Cohen, 61 AD3d 426 (1st Dept 2009) A medical physicist (who apparently was not a PhD) was precluded from offering testimony as to the biological equivalent dose (BED) of radiation brachytherapy administered to P , the court noting (a) that he wasn’t a medical doctor; and (b) that he lacked the experience and highly specialized medical knowledge to calculate the BED “under the specific and unique circumstances involved in treating P’s rare illness.”

De Hernandez v Lutheran Medical Center, 46 AD3d 517 (2d Dept 2007) P’s expert on causation, a physicist who studied the growth patterns of breast cancer in general, was unqualified to render expert testimony regarding the rate of growth of the decedent's tumor, a retroperitoneal sarcoma. This non-physician showed no specialized knowledge, experience, training, or education from which it could be inferred that his opinion regarding the growth of the decedent's sarcoma would be reliable.

Horner v Way, 257 AD2d 819 (3d Dept 1999) Parasitology expert wasn’t qualified to testify as to a practicing physician’s standard of care.

Postlethwaite v United Health Services Hospital, 5 AD3d 892 (3d Dept 2004) P called an expert in anesthesiology and pharmacology to testify as to whether a surgeon and gastroenterologist had properly diagnosed and treated P. Regardless of the

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©Doctors & Their Records at Trial Benedene Cannata, 2015 fact that he was a medical doctor, the expert did not exhibit the knowledge and expertise of the accepted diagnostic practices in Ds’ respective fields of medicine.

Carrozzo v Carrozzo, 202 AD2d 1070 (4th Dept 1994) No abuse of discretion in precluding the psychiatric testimony of a doctor who wasn’t qualified as an expert in the field of psychiatry, and whose report failed to show that he had conducted a proper examination.

Expert’s specialty in malpractice cases

Fuller v Preis, 35 NY2d 425 (1974) Here D contended that P’s treating neurologist was incompetent to criticize the conduct of D psychiatrist. The Court of Appeals disagreed: “That the neurologist did not practice the closely related specialty of psychiatry was no bar to his testifying as a medical expert (see People v Rice, 159 NY 400, 410, 54 NE 48, 51; Richardson, Evidence 10th ed. § 368).”

Kletnieks v Brookhaven Memorial Association, Inc., 53 AD2d 169 (1976) This is an old case that is often cited for the proposition that a medical malpractice trial, a witness need not be a specialist in order to qualify as an expert.

1st Dept

Robertson v Greenstein, 308 AD2d 381 (1st Dept 2003) P’s medical expert was not required to practice the same specialty as D surgeon.

Martino v Bendo, 93 AD3d 500 (1st Dept 2012) “While plaintiffs' expert, a board certified orthopedic surgeon who specialized in joint replacements, was not a specialist in spinal surgery, the court properly found him qualified to render an opinion as to whether defendant had deviated from accepted medical practice in performing the surgical procedure… Plaintiffs' expert had training in spinal surgery, had practiced as an orthopedic surgeon for 30 years, and his findings were found to be detailed, based upon the evidence, and not challenged by defendant.”

2d Dept

Humphrey v Jewish Hospital and Medical Center of Brooklyn, 172 AD2d 494 (2d Dept 1991) General surgeon permitted to give expert opinion as against ob/gyn. 106

©Doctors & Their Records at Trial Benedene Cannata, 2015 Ariola v Long, 197 AD2d 605 (2d Dept 1993) Ophthalmologist should have been permitted to testify regarding the standard of care, and issue of informed consent, relating to laser eye surgery, notwithstanding that he had never performed the particular surgery at issue.

Julien v Physician’s Hospital, 231 AD2d 678 (2d Dept 1996) Neurologist permitted to give expert opinion on the standard of care of an orthopedic surgeon.

Erbstein v Savasatit, 274 AD2d 445 (2d Dept 2000) Pathologist permitted to give expert opinion on the standard of care a general surgeon.

Bodensiek v Schwartz, 292 AD2d 411 (2d Dept 2002) Oncologist should have been permitted to testify against gynecological surgeon.

Beizer v Schwartz, 15 AD3d 433 (2d Dept 2005) That P’s expert was a general dentist, and not a periodontist, went to the weight of his testimony, not its admissibility.

Texter v Middletown Dialysis Center, Inc., 22 AD3d 831 (2d Dept 2005) P fell at a dialysis center. The expert was qualified to give an opinion on the standard of care and treatment applicable to dialysis centers. Expert established his qualifications as a medical expert and his familiarity with the standard of care applicable to the protocols. Any lack of skill or expertise goes to the weight of the expert's opinion and not its admissibility.

Borawski v Huang, 34 AD3d 409 (2d Dept 2006) In a case alleging failure to diagnose gastric cancer, an oncologist was permitted to testify against gastroenterologist.

Dykstra v Avalon Rest. Renovations, Inc., 60 AD3d 446 (2d Dept 2009) P’s expert, a general surgeon with a subspecialty in vascular surgery, was not required to have practiced in the specific specialty of orthopedic surgery in order to give expert opinion. He had the requisite knowledge regarding general practices for preventing blood clots during surgery.

3d Dept

Benfer v Sachs, 3 AD3d 781 (3d Dept 2004) There is no requirement that P’s expert, an orthopedic surgeon like D, have the

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©Doctors & Their Records at Trial Benedene Cannata, 2015 same specialty within orthopedic surgery as D in order for him to opine about the applicable standards of care.

4th Dept

Bickom v Bierwagen, 48 AD3d 1247 (4th Dept 2008) A physician specializing in physical medicine and rehabilitation was competent to render an opinion (on a summary judgment motion) against a physical therapist.

Diel v Bryan, 71 AD3d 1439 (4th Dept 2010) A board certified anesthesiologist properly testified as to the standard of care to be applied in evaluating D dentist’s administration of anesthesia during a dental procedure. Although D’s expert (in oral maxillofacial surgery) testified that there were “separate rules for dentists only,” D failed to establish how the administration of anesthesia to P’s decedent required special training or differed in any material respect from the administration of anesthesia by an anesthesiologist.

Locality Rule in malpractice cases

The prevailing standard of care governing the conduct of medical professionals demands that a doctor exercise that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where the doctor practices. The "locality rule" represents a minimum standard. Toth v Community Hosp. at Glen Cove, 22 NY2d 255 (1968) It evolved to protect physicians who practice in rural communities from being held to a higher standard of care than their urban and suburban counterparts. The locality rule does not insulate from liability doctors who are board-certified or otherwise possess superior knowledge and skills that exceed local standards, and are provided the wherewithal (e.g., equipment, personnel, funding) to employ these attributes. Rho v Ambach, 144 AD2d 774 (3d Dept 1988); Riley v Wieman, 137 AD2d 309 (3d Dept 1988).

Meiselman v Crown Heights Hospital, 258 NY 389 (1941) The expert was educated and practiced in Germany until 1936, since which time he had practiced in New York. But it was while the physician was practicing in Germany that he had gained personal experience with the treatment of osteomyelitis, the condition at issue in the case. He had also become familiar with its treatment throughout the world by reading literature on the subject. The Court of Appeals found that his testimony against a New York physician and hospital as to standards of care in

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©Doctors & Their Records at Trial Benedene Cannata, 2015 1932 should have been permitted, noting: "Residence alone neither bars a physician from testifying as an expert nor qualifies him so to do."

Riley v Wieman, 137 AD2d 309 (3d Dept 1988) The court refused to apply the locality rule to bar the videotaped testimony of a California radiologist against an upstate New York radiologist.

Hoagland v Kamp, 155 AD2d 148 (3d Dept 1990) A board-certified oral/maxillofacial surgeon whose practice was limited to the New York City area was properly permitted to testify against general dental practitioners practicing in Thompson County as to minimal general dentistry standards, notwithstanding the "locality rule" and the fact he was a specialist. The court wrote: “The locality rule, premised as it is on such variables as geography, availability of medical facilities, consultants, specialists, equipment, personnel and the like, does not, however, prohibit him from testifying to what we perceive plaintiffs proposed to show; namely, that there is a minimum standard of care that dentists licensed to practice in this State are expected to exercise .... that this standard is uniform throughout the State, and presumably that the treatment furnished in this instance fell below this threshold.”

Payant v Imobersteg, 258 AD2d 702 (3d Dept 1998) Where the medical expert proposes to testify about minimum medical standards applicable throughout the United States, the "locality rule," will not bar testimony. The court reasoned that: “...the development of vastly superior medical schools and postgraduate training, modern communications, the proliferation of medical journals, along with frequent seminars and conferences, have eroded the justification for the rule. Thus, where, as here, a medical expert proposes to testify about minimum standards applicable throughout the United States, the locality rule should not be invoked.”

Kelly v State, 259 AD2d 962 (4th Dept 1999) A New York City orthopedic surgeon properly testified that a Livingston County physician deviated from the accepted standards of care of all interns and primary care physicians, regardless of their geographical area of practice.

Hypothetical Questions

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©Doctors & Their Records at Trial Benedene Cannata, 2015 CPLR 4515. Expert opinion.

“Unless the court orders otherwise, questions calling for the opinion of an expert witness need not be hypothetical in form, and the witness may state his opinion and reasons without first specifying the data upon which it is based. Upon cross-examination, he may be required to specify the data and other criteria supporting the opinion.”

Gilleo v Elizabeth A. Horton Memorial Hospital, 196 AD2d 569 (2d Dept 1993) Hypothetical questions must not mischaracterize the evidence or misstate the underlying facts. If an expert's response to a hypothetical is not fairly based on the evidence, it may be grounds for a new trial.

People v Cruz, 233 AD2d 102 (1st Dept 1996) The trial court properly permitted the prosecutor to pose hypothetical questions to the medical expert . The questions were premised on the existence of a fact that the evidence fairly tended to support and encompassed a theory argued in the opening statement.

Banister v Marquis, 87 AD3d 1046 (2d Dept 2011) Error to permit defense counsel to ask P’s expert a hypothetical question pertaining to the probability of the infant P having both a pectus carinatum and fibromatosis. The hypothetical wasn’t based on facts supported by or fairly inferable from the evidence. The error however, was harmless.

“Reasonable Degree of Medical Certainty”

Matott v Ward, 48 NY2d 455 (1979) The standard for admissibility is whether the expert has expressed “a degree of confidence” in rendering the opinion sufficiently to satisfy accepted standards of reliability, and the opinion is not based upon supposition or speculation.

“Granted that ‘a reasonable degree of medical certainty’ is one expression of such a standard and is therefore commonly employed by sophisticates for that purpose, it is not, however, the only way in which a level of certainty that meets the rule may be stated. For, an overview of New York case law reveals that the requirement is not to be satisfied by a single verbal straightjacket alone, but, rather, by any formulation from which it can be said that the witness' ‘whole opinion’ reflects an

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©Doctors & Their Records at Trial Benedene Cannata, 2015 acceptable level of certainty ….. To be sure, this does not mean that the door is open to guess or surmise, and admittedly, ‘a degree of medical certainty’, taken literally and without more, could very well be so characterized.”

Ward v Kovacs, 55 AD2d 391 (2d Dept 1977) The defense expert in this medical malpractice case had great credentials and an in-depth personal knowledge of the case, but he lacked experience as a medical witness. He testified that LSD greatly contributed to a fast-growing infection ultimately resulting in the amputation of P’s three fingers. On cross-examination however, the expert vitiated his direct testimony by agreeing with P’s counsel, in conclusory fashion, that 'LSD's connections with this whole thing was speculative', and that he 'didn't mean to tell * * * the jury, with a reasonable degree of medical certainty * * * that this girl lost her hand because of LSD.' Then on direct, the expert redeemed himself, with specific opinions and reasoning. Nevertheless, the court struck his testimony as speculative. The Second Department reversed, finding that the specifics of the expert's testimony manifested a reasonable medical certainty, whereas his conclusory statements during cross-examination indicated otherwise. The following quotes are instructive:

“His testimony was sufficiently specific, in fact, to have been admissible had it been accompanied by the magic and ritualistic words that he believed it to be true 'with a reasonable degree of medical certainty.'

“As was stated in Matter of Miller v National Cabinet Co., 8 NY2d 277, 282, 168 NE2d 811, 813:'The probative force of an opinion is not to be defeated by semantics if it is reasonably apparent that the doctor intends to signify a probability supported by some rational basis.'

“Medical opinions which have been stated merely to be 'possible' or 'probable' have heretofore been sustained where there was a reasonable basis in fact for permitting them (see McGrath v Irving, 24 AD2d 236, lv to app. den., 17 NY2d 419, 215 NE2d 529), and, as Chief Judge Desmond observed in Matter of Ernest v Boggs Lake Estates, 12 NY2d 414, 416, 190 NE2d 528, 529, '[o]ur function is not to reject opinion evidence because nonlawyer witnesses fail to use the words preferred by lawyers and judges but to determine whether the whole record exhibits * * * substantial evidence' (see, also, Richardson, Evidence Prince, 10th [ed.], 371).”

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Kun Sik Kim v State St. Hospitality, LLC, 121 AD3d 760 (2d Dept 2014) Because P’s experts failed to indicate with any degree of certainty that P would require future surgery, the award for future medical expenses was in part based on speculative testimony and as such was reduced.

Knutson v Sand, 282 AD2d 42 (2d Dept 2001) Here P’s theory of dental malpractice was that D an oral surgeon improperly implanted two out of three titanium fixtures, damaging the alveolar nerve. Two experts for P testified; (a) that a primary concern in planning dental implants is to avoid intrusion into the alveolar nerve canal; and (b) that it’s necessary to avoid an intrusion of a foreign body into the nerve canal to prevent nerve damage. A third expert, a neuroradiologist, confirmed that one of the implants indeed passed through the canal. All of them testified that the placement of the implants into the canal was a competent producing cause of P’s injuries. But none these experts actually stated in specific words that D’s specific acts constituted a departure from accepted practice. The Second Department found that the testimony given was enough to sustain the verdict. “So long as the inference of departure from the requisite standard of care is fairly supported by the evidence and consistent with a party's argument or theory of the case, it may be drawn.”

Musso v Earth Movers Inc., 240 AD2d 846 (3d Dept 1997) “It is well established that medical opinion with respect to causal relationship in workers' compensation cases need not be stated in terms of ‘positiveness or absolute certainty…. The function of the court ‘is not to reject opinion evidence because nonlawyer witnesses fail to use the words preferred by lawyers and (j)udges but to determine whether the whole record exhibits substantial evidence.’”

Blome v Presti Auto Sales, 43 AD2d 1002 (3d Dept 1974) "An educated medical theory may support an opinion of causal relationship and absolute knowledge of exactly what occurred medically is not necessary to support such an opinion.”

Duffen v State, 245 AD2d 653 (3d Dept 1997) The doctor's opinion testimony that, depending on the patient and the condition, a lack of medication "may or may not" have caused his dizziness, is too speculative.

Henry v New York City Transit Auth., 92 AD3d 460 (1st Dept 2012) P’s dentist’s testimony as to causation was proper, even though he didn’t state his opinion to “a reasonable degree of medical certainty,” considering his testimony as a whole and P’s history of first noticing loose teeth while in the hospital after the accident.

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Kahvejian v Pardo, 125 AD3d 936 (2d Dept 2015) Asked whether P’s condition was caused by the accident, P’s treating physician testified, “I cannot say with 100 percent certainty that the accident caused avascular necrosis,” but that “there is reason to believe that the accident caused the avascular necrosis,” and “a reasonable degree of medical probability” that the accident caused the condition. Held: “The usual language is “to a reasonable degree of medical certainty,” but the phrase “degree of medical certainty” has been deemed sufficient (see Matott v Ward, 48 NY2d 455, 459). In Matott, the Court of Appeals held that the relevant inquiry is “whether it is ‘reasonably apparent’ that ‘the doctor intends to signify a probability supported by some rational basis' ” (id. at 461, quoting Matter of Miller v National Cabinet Co., 8 NY2d 277, 282). Here, the phrase “reasonable degree of medical probability” satisfied that standard.”

Calling Adversary's Expert

Byczek v City of New York Dept of Parks, 81 AD2d 823 (2d Dept 1981) After P had been wrongly precluded from calling her medical expert, she attempted to adopt D's medical expert as her own witness. This was impermissible, as it "would have placed (the expert) in the position of working for both sides."

Gilly v City of New York, 69 NY2d 509 (1987) A physician who examined P at D’s instance and who had formulated his findings and had them conveyed to both parties in the litigation, and who is willing to testify, should not be barred from relating the substance of his report when called as a witness by P . The court wrote:

“We conclude that a physician in the position of Dr. Edson, who has examined plaintiff, formulated his findings and had them conveyed to both parties in litigation, should not be barred from relating the substance of his report when called as a witness by plaintiff. Permitting such evidence furthers truth-seeking objectives without engendering the concerns expressed in McDermott and Kraushaar. First, disinterested persons need not fear being drawn into litigation on limitless occasions because of their distinctions and attainments. Dr. Edson voluntarily involved himself in the case when he undertook to--and did in fact-- examine plaintiff and report his findings regarding her condition, and at 113

©Doctors & Their Records at Trial Benedene Cannata, 2015 trial expressed no objection to relating his findings. Second, the physician is not being compelled to express an opinion against his will, but only to relate conclusions already formulated and fully disclosed …. Finally, there is no danger that by giving this limited evidence the physician would be thrust into an ethical dilemma or pulled apart by competing loyalties…. Once a physician's report has been reduced to writing and served on the adversary, it ceases to be for the exclusive use of defendant. At that point both sides have access to this probative evidence and there is no basis for withholding it from the trier of fact.”

Bevilacqua v Gilbert, 143 AD2d 213 (2d Dept 1988) The trial court should have allowed P s to call D’s examining physician to testify as to the content of his report. “A physician who has examined P at the request of D , and formulated his findings and conveyed the findings to the parties, should not be barred from relating the substance of his report when called as a witness by P.

Metropolitan New York Coordinating Council on Jewish Poverty v FGP Bush Terminal, Inc., 1 AD3d 168 (1st Dept 2003) This case apparently involved property damage due to a flood, but the holding of pertinent here. The trial court properly quashed P’s subpoena to require the testimony of an expert retained by the defense "since involuntary expert opinion testimony may not ordinarily be compelled, and there were no circumstances upon which an exception to this rule might have been premised." It is not stated whether the expert prepared a report. Perhaps what is different about this case is that the expert was not willing to testify. However in the Gilly case, it appeared that the expert was willing to testify.

Ingleston v Francis, 206 AD2d 745 (3d Dept 1994) “Contrary to Ds' assertion, P was at liberty to call Ds' expert, Patricia Fox, who had examined P at the request of Ds and whose report had been given to P (see, Gilly v City of New York, 69 NY2d 509, 508 NE2d 901). Her testimony, if in accordance with her report, would have established prima facie a serious injury.”

Zysk v Bley, 24 AD3d 757 (2d Dept 2005) P should’ve been allowed to call D 's examining physician as a fact witness if she chose. The testimony would be limited to examining the conclusions formulated and discussed in the physician’s report.

Hughes v Webb, 40 AD3d 1035 (2d Dept 2007) It is well settled that the substance of a report prepared by a physician employed by D to examine a P , which was furnished to both parties, can be elicited by P as part of his or her direct case through the testimony of the physician. It was thus an abuse 114

©Doctors & Their Records at Trial Benedene Cannata, 2015 of discretion to deny P the brief continuance to compel the examining physician to obey the subpoena to appear at trial.

Reilly v Ninia, 81 AD3d 913 (2d Dept 2011) The trial court correctly determined that the former director of the hospital's Department of Obstetrics and Gynecology could not be compelled to provide expert testimony. He wasn’t a named defendant, had no role in the treatment of the mother and baby, and wasn’t subject to liability.

Demeter v Mem'l Hosp. for Cancer & Allied Diseases, 156 Misc 2d 688 (Sup Ct, New York County 1993, Sklar, J.) D in a medical malpractice action had P examined by a Dr. Davis under CPLR 3121 and exchanged Dr. Davis’s report. The case didn’t come up for trial until years later. Just before trial — and apparently unaware of Dr. Davis’s medical report in the file — P’s counsel asked Dr. X to review the records and comment on liability. Finding departures, Dr. Davis — apparently haven’t forgotten that he had examined P on behalf of D — agreed to testify for P. D of course objected, arguing: (a) conflict of interest; and (b) having retained Dr. Davis, it might look to the jury that D was vouching for his credibility. Noting that “McDermott and Gilly mark the path to be followed” the trial court held that “Dr. Davis' performance of an examination does not bar him from also serving as an expert for plaintiffs.”

“The claim that Dr. Davis would unethically represent two masters is grounded on an outmoded concept that one purchases the opinion of an expert. An expert is theoretically an individual with specialized knowledge who shares information with the trier of facts to aid in the resolution of a disputed technical issue. ‘With respect to the opinion of an expert, that opinion should be equally available to all parties willing to pay an appropriate fee for time consumed by travel and testimony, and for whom the expert is willing to testify as to that opinion. To conclude that the opinion will, in any way, be based on which party pays for the examination (or tests or consultation) and on which party pays for the testimony, does gross disservice to the expert and to his or her integrity. The trier of fact is entitled to all available information ...’ (Carrasquillo v. Rothschild, 110 Misc.2d 758 at 760).”

Any concerns D had could be addressed during cross-examination. It’s not clear from the decision whether Dr. Davis was paid by D for his examination, and then paid by P for his comments on liability. But it would appear that that was the case. 115

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Prescott v Le Blanc,247 AD2d 802 (3d Dept 1998) “Defendants contend that Supreme Court should not have disturbed the jury's verdict since it was free to disregard the opinions of plaintiff's experts. As a broad generalization, defendants' contention is correct; however, a jury's determination not to accept expert testimony and opinion must be supported by other testimony or by the cross- examination of the expert (see, 3 Bender's N.Y. Evidence 7.01(8), at 7- 48). Thus, where an expert equivocates on cross-examination or his findings are not supported by a fair interpretation of the evidence, the jury could properly disregard the expert's opinion…”

“However, in this case there was no basis for the jury to disregard the experts' opinions since they were uncontroverted and remained steadfast in the face of defendants' cross-examination. Therefore, we find that the jury could not have reached its verdict on any fair interpretation of the evidence and accordingly conclude that Supreme Court did not abuse its discretion in setting the verdict aside.”

In the Matter of Principe v McCall, 255 AD2d 853 (3d Dept 1998) While the expert testimony was not uncontroverted, it was pretty close to it. This was an Article 78 case to determine whether a state employee was entitled to disability benefits. There's an interesting contrast between the expert medical evidence presented from both sides. The petitioner's treating physicians testified to: a biopsy demonstrating metabolic changes in the muscles; a test on conduction velocities of three nerves showing delayed responses with possible nerve damage; myography studies of the right arm yielding abnormal results; biopsy of the left leg showing an abnormal number of sarcolemma cells in the muscle; an electron microscope survey showing an abnormal accumulation in the muscles; and electron micrograph study of a small artery that was abnormal, and electromyography test that was abnormal; and another (unstated) test indicating the possible onset of tarsal tunnel syndrome. By contrast, the neurological examination on behalf of the Comptroller was largely visual -- no scientific tests were performed except the usual tendon and triceps tests to elicit reflexes and jerks. Finding her body mass normal, the physician's diagnosis was malingering. Remarkably, petitioner was denied disability benefits. On appeal, the determination was annulled and the matter remitted, noting that the Comptroller's physician "failed to perform any of the tests with which diagnoses he disagreed to substantiate his own conclusions.”

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Finally, the Third Department found that testimony that the petitioner was "currently unable to perform her duties" combined with the conclusion that "her condition was progressive" equates to a finding of permanency.

Sperduti v Mezger, 283 AD2d 1018 (4th Dept 2001) “We conclude that the court properly determined that the jury's failure to award plaintiff any damages for future pain and suffering is against the weight of the evidence. The testimony of plaintiffs' experts that plaintiff sustained a permanent shoulder injury, which causes pain and restricts the range of motion of her right arm, was not controverted by defendant.”

Reed v City of New York, 304 AD2d 1 (1st Dept 2003) Any error in allowing P’s expert to testify at trial that P’s brain injuries placed her at risk for Alzheimer's disease, epilepsy, seizures and dementia (none of which had been mentioned in the reports or the bill of particulars) was rendered harmless in view of the overwhelming, uncontroverted medical testimony concerning P’s devastating injuries and deteriorating health.

Suib v New York City Board of Education, 309 AD2d 920 (2d Dept 2003) “Plaintiff presented uncontradicted expert medical testimony by her surgeon than the previous condition had resolved itself and the current tarsal tunnel syndrome was unrelated to the previous condition and due solely to her fall on defendants’ staircase. The respondents' contention regarding plaintiff 's condition was based solely on speculation and not supported by the evidence. Accordingly, P’s motion pursuant to CPLR 4404(a) to set aside the verdict and for a new trial on damages should have been granted.”

Inzinna v Brinker Restaurant Corp., 302 AD2d 967 (4th Dept 2003) In light of uncontroverted medical evidence, on appeal, several damages awards were set aside as against the weight of the evidence. P presented uncontroverted evidence that she had sustained painful injuries to her ankle, wrist and shoulder and that she had undergone surgery and painful physical therapy. In light of that evidence, the award of $25,000 for past pain and suffering was found to be inadequate and could not have been reached upon any fair interpretation of the evidence. P also presented uncontroverted medical evidence that P’s injuries would continue to cause P pain and weakness and restriction in her movement on a long- term basis. Thus, the failure to award damages for future pain and suffering was also against the weight of the evidence. Finally, P’s presented uncontroverted medical evidence that she will continue to require physical therapy. Thus the failure to award damages for P’s future medical expenses was also against the weight of the evidence. 117

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Stevens v Maimone, 6 AD3d 1222 (4th Dept 2004) At issue was whether the trial court erred in granting P’s motion seeking a directed verdict on the issue whether P sustained the threshold “serious injury” within the meaning of Insurance Law 5102(d). The Fourth Department rejected that argument:

“The uncontroverted testimony of plaintiff and plaintiffs' medical expert was sufficient to permit the court to determine as a matter of law that plaintiff's back injuries have resulted in a permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system.”

The Defendant Physician on the Stand

McDermott v Manhattan Eye, Ear and Throat Hospital, 15 NY2d 20 (1964) "(A) party in a civil suit may be called as a witness by his adversary and, as a general proposition, questioned as to matters relevant to the issues in dispute." More to the point, a medical malpractice P may call D physician as a witness at trial and question the doctor as to fact and opinion.

“In short, then, a plaintiff in a malpractice action is entitled to call defendant doctor to the stand and question him both as to his factual knowledge of the case that is, as to his examination, diagnosis, treatment and the like and, if he be so qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community. While it may be the height of optimism to expect that such a plaintiff will gain anything by being able to call and question as an expert the very doctor he is suing, the decision whether or not to do so is one which rests with plaintiff alone.”

Thus, while an "unwilling witness who is in no way connected with the action" could not be compelled to testify as an expert, D physician, by virtue of his association with the case, can be.

Marzuillo v Isom, 277 AD2d 362 (2d Dept 2000) To establish their claim of medical malpractice, P called D doctors to testify and, in so doing, rendered them hostile witnesses who could be cross-examined. However, P had no right to impeach his own witnesses. 118

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Knutson v Sand, 282 AD2d 42 (2d Dept 2001) “It is well settled that a plaintiff in a medical/dental malpractice action may call as a witness the doctor, dentist, or other health-care provider against whom the action is brought in order to elicit testimony both as to fact and opinion”

Rivera v La Guardia Hosp., 12 AD3d 585 (2d Dept 2004) Although P’s expert witness was precluded from testifying, the case was not dismissed. It was still possible for P to establish a prima facie case of medical malpractice through the testimony of the examining physician, and even, conceivably, the testimony of D physician herself.

Goff v Paul, 8 AD3d 971 (4th Dept 2004) D physician had a nasty history, including suspension of his privileges, a peer- reviewed study critical of his work, and a prior alcohol dependency. At trial, P did not call D in his case in chief. Instead, he attempted to cross examine D on his prior bad acts following defense counsel's direct examination. P’s counsel also attempted to elicit opinions from D on the standards of medical care. The trial court refused to permit P’s counsel to do so, stating that the cross-examination was beyond the scope of D 's direct examination. The Fourth Department affirmed, noting the scope and extent of cross- examination are within the broad discretion of the trial court. Justice Gorski dissented, citing Gilly v City of New York, (see discussion infra) and its holding that a P in a medical malpractice action should be permitted to examine his doctor opponent as fully and freely as other qualified witnesses.

Giventer ex rel. Giventer v Rementeria, 181 Misc 2d 582 (Sup Ct, Richmond County, 1999, Maltese, J) The following quote says it all:

“During the trial of a medical malpractice action plaintiff may call D as a hostile witness (FN2) and may ask leading questions about the actions or inactions of the doctors that he or she worked with in treating P - patient. When called as a witness, defendant doctor must "respond to virtually all questions * * * relevant to the issues, even if his testimony on such matters might further plaintiff 's case" (McDermott at 28, 203 NE2d 469) as long as they are within his expertise, even if not in his specialty (Harley v Catholic Medical Center of Brooklyn, 88 Misc 2d 126 [Sup Ct Nassau County 1976] aff'd 57 AD2d 827 [App Div 2d Dept 1977]).

“FN2. In Jordan v Parrinello, 144 AD2d 540, 541 (App Div 2d Dept 119

©Doctors & Their Records at Trial Benedene Cannata, 2015 1988), the court held that "(i)t is well established that when an adverse party is called as a witness, it may be assumed that such adverse party is a hostile witness, and, in the discretion of the court, direct examination may assume the nature of cross-examination by the use of leading questions. However, a party may not impeach the credibility of a witness whom he calls (see, Becker v Koch, 104 NY 394, 10 NE 701) unless the witness made a contradictory statement either under oath or in writing (see, CPLR 4514). On this point we note that the trial court did recognize the exception to the rule when it permitted plaintiff's counsel to attempt to impeach his witness with the latter's deposition testimony."

Vega v Lapalorcia, 281 AD2d 623 (2d Dept 2001) “The Supreme Court also improperly restricted P s' direct examination of D . It is well settled that a plaintiff in a medical malpractice action may call as a witness D doctor and question him or her as an expert witness (see, McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20, 203 NE2d 469; Braun v Ahmed, 127 AD2d 418, 420; Segreti v Putnam Community Hosp., 88 AD2d 590, 592). Accordingly, the court should have permitted P s' attorney to fully examine D doctor regarding alleged departures from accepted medical practice and the issue of informed consent.”

Orner v Mount Sinai Hosp., 305 AD2d 307 (1st Dept 2003) This case, discussing permissible deposition questions, is certainly applicable to trial questions as well. It is proper to ask D physician in a medical malpractice case substantive questions relating to D ’s expert opinions and the status of generally accepted community standards of medical practice. Also general background questions, such as date of birth, marital status, board certification, and experience testifying as an expert in court, are routinely permitted at trial.

Graney v Ryan, 19 AD3d 1172 (4th Dept 2005) P failed to preserve for appellate review the contention that the court abused its discretion in precluding her from treating D physician as a hostile witness during direct examination.. In any event, the error was harmless because P had ample opportunity to cross-examine D when he testified on his own behalf.

Custom and Habit

Biesiada v Suresh, 309 AD2d 1245 (4th Dept 2003) P , a stroke victim, sustained injury when being transferred. Although D had no 120

©Doctors & Their Records at Trial Benedene Cannata, 2015 specific recollection of the incident, her testimony concerning her "protocol" in transferring stroke patients was properly admitted into evidence to establish her conduct during the incident in question.

Rivera v Anilesh, 32 AD3d 202 (1st Dept 2006) In this dental malpractice case, D testified that it was her custom and practice to discuss the risk of a tooth extraction with a patient before doing the extraction. However, she couldn't recall whether she had had such a discussion with P. She moved for summary judgment, relying primarily on evidence of her custom and practice. The First Department found that testimony as to routine practice was inadmissible. Here, it didn't take into consideration the unique circumstances of each individual patient, and shouldn't be compared with the “repetitive ‘hornbook’ warnings conveyed by a physician to prospective surgical patients” of the risks involved in a particular type of surgery.

Schaefer v HC Health Care Plan, 283 AD2d 977 (4th Dept 2001) At deposition, both D and a hospital employee testified that it was the usual custom and practice to mail the thyroid scan report to the physician who had ordered it, that the report would be initialed by the physician who dictated it and then mailed, typically on the day after its dictation. The hospital employee further testified that, because P’s paperwork did not indicate which physician at D hospital had ordered the scan, it would have been sent to certain offices. Held: D established his entitlement to judgment by presenting evidence of the “office practice or procedure in the regular course of business” with respect to mailing reports.

Soltis v State, 188 AD2d 201 (3d Dept 1993) The trial court should have allowed into evidence proof that it was custom and practice of physician's assistants and nurses at a correctional facility clinic to advise the inmates that the physicians were not employees of state, as evidence that they acted in conformity with custom and practice by so advising the claimant.

Testimony Comporting with Medical Exchange

1st Dept

Taylor v Daniels, 244 AD2d 176 (1st Dept 1997) “Nor is there merit to defendant's claim that the court improperly allowed 121

©Doctors & Their Records at Trial Benedene Cannata, 2015 plaintiff’s medical witness to testify about possible future surgery without defendant ever having been advised of that possibility prior to trial, in violation of 22 NYCRR 202.17(h). That rule does not preclude a medical witness from "detail(ing) the functional consequences of previously reported injuries or conditions" (Shehata v Sushiden Am., 190 AD2d 620 ). Here, the witness clearly was not advancing any new injury or condition, but instead merely relating a conclusion that could have been reasonably anticipated from the injuries that were fully disclosed to defendant. Significantly, plaintiff's bill of particulars expressly stated that she might have to undergo future surgery.”

Serpe v Eyris Productions, Inc, 243 AD2d 375 (1st Dept 1997) In this labor law case, the trial court permitted P’s expert to testify as to the permanency of P’s injuries, although that was not included in the medical reports previously exchanged. Defense claimed this was a violation of 22 NYCRR 202.17(h) and therefore the award for future damages should be vacated. The First Department disagreed. D wasn’t surprised or prejudiced because: (1) P alleged in his bill of particulars that the injuries were continuing and permanent; (2) defense counsel neglected to process the medical authorizations; and (3) defense counsel declined to call any of the three physicians it had retained to examine P .

Iasello v Frank, 257 AD2d (1st Dept 1999) P’s treating physician and chiropractor were properly permitted to testify as to their recent examinations of P, even though P didn’t serve reports after those examinations. The testimony described no new injuries or claims, but merely the consequences of injuries described in previously served medical reports.

Reed v City of New York, 304 AD2d 1 (1st Dept 2003) P was hit by a police motor scooter and fell back, hitting her head on the pavement. She suffered multiple skull fractures with ensuing brain damage. Her examining physician testified to many aspects of the injuries, including memory loss, dizzy spells, a permanent inability to lie down, loss of olfactory sense, progressive tissue loss, inability to control emotions, cognitive deficits, etc., all of which were assumedly included in expert reports. The physician added at trial however, that P’s brain injuries placed her at risk for Alzheimer's disease, epilepsy, seizures and dementia, none of which had been mentioned in the reports or the bill of particulars. This testimony was permitted and the First Department found rightfully so. “(D)efendants' claims of surprise ring hollow" as they were clearly on notice that P was claiming a serious, degenerative brain injury. Adding to the mix no doubt was the fact that defendants neglected to call any medical experts to dispute the injuries, including the “eminent board-certified neurologist” they had consulted.

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Banks v City of New York, 92 AD3d 591 (1st Dept 2012) P’s treating orthopedic surgeon was properly permitted to testify as to the possible need for future knee replacement surgery, despite P’s noncompliance with 22 NYCRR 202.17(g).

2d Dept

Karashik v Brenner, 111 AD2d 150 (2d Dept 1985) The report of D s physical examination doesn’t need to set forth the etiology of P’s injuries and physical condition or causal connection in order to allow the examining physician to testify thereto at trial.

Holshek v Stokes, 122 AD 2d 777 (2d Dept 1986) The court properly exercised its discretion in permitting the examining physician to testify as to the permanency of P’s knee injuries, even though they weren’t mentioned in the report. The bottom line is prejudice. The following quote is instructive.

“Firstly, while the doctor's report did not state that the injuries were permanent, it did not foreclose this possibility; therefore D cannot claim surprise or prejudice by this testimony (see, Manoni v Giordano, 102 AD2d 846). Moreover, permanency cannot be considered an injury or condition. Rather, it relates to the severity of the knee injuries put into issue in the medical report (see, Johnson v School Dist. of City of Poughkeepsie, 83 AD2d 931). Further, the doctor's testimony as to the possibility of arthritis in the future was properly admitted as a valid medical opinion as to a possible complication of the injuries. Again, D cannot claim surprise or prejudice by this testimony, especially in light of the fact that the condition was raised in the bill of particulars. Lastly, we find that the doctor's testimony that plaintiff's present symptoms could indicate the onset of arthritis was properly admitted as P testified to these symptoms at trial; therefore the doctor was merely giving his opinion as a medical doctor as to the significance of these symptoms.”

Holder v Bowery Sav. Bank, 250 AD2d 813 (2d Dept 1998) The trial court should not have permitted P’s medical expert (an examining physician) to testify that, in his opinion, in addition to the injuries claimed, P also suffered from arthritis. Arthritis hadn’t been mentioned before trial, in either the bill of particulars, the 3101(d) disclosure, or the physician’s 1993 medical report. Further, although the physician apparently examined P again in 1997, there was no report issued. Defense 123

©Doctors & Their Records at Trial Benedene Cannata, 2015 counsel thus had no opportunity to conduct a further physical in light of the newly alleged injury.

Klempner v Leone, 277 AD2d 287 (2d Dept 2000) "Absent a showing of good cause, a medical expert's testimony should be precluded if it contradicts the facts and opinions in his or her medical report or discusses a condition or ailment not mentioned in the report." However, the examining medical expert here didn't contradict himself when he testified that P’s carbon monoxide exposure wasn’t causally related to her asthma. His report had stated that environmental factors may have been causally related to the condition, but never specifically mentioned that the carbon monoxide exposure was one of them. Thus, the trial court properly allowed the testimony.

Matszewska v Golubeya, 293 AD2d 580 (2d Dept 2002) This decision answers the question of “What if there was an error in a previously exchanged report?” Trial court properly precluded the testimony of D's examining medical expert. In his report, the expert concluded that P’s preexisting arthritis was not related to and wouldn’t have any effect on her recovery. At trial four months later, D claimed that there was an error in the report and sought to elicit testimony from the expert that P’s preexisting arthritis would affect her recovery. Because this contradictory testimony surprised and would have prejudiced P, and D failed to demonstrate good cause for its admission, the Supreme Court properly excluded the testimony.

Krimkevitch v Imperiale, 104 AD3d 649 (2d Dept 2013) Just before trial, D served an amended report by his expert orthopedic surgeon, which, in contrast to an earlier report, attributed P’s injuries to solely to a pre-existing condition. Held: the trial court should not have permitted the expert to testify as to this new conclusion, as P had no opportunity to prepare for rebuttal.

3d Dept

Kirschhoffer v Van Dyke, 173 AD2d 7 (3d Dept 1991) D attempted to introduce opinions -- about P’s pre-accident condition -- that were absent from the medical reports exchanged. Such opinions were properly precluded, the court noting:

“Initially, defendants contend that Supreme Court improperly precluded their medical expert, Robert Hendler, from testifying that Kirschhoffer would have likely required surgery had the accident not occurred. We disagree. The parties' medical experts exchanged reports pursuant to 22 NYCRR 202.17 and it was agreed that Kirschhoffer had a preexisting 124

©Doctors & Their Records at Trial Benedene Cannata, 2015 asymptomatic spondylolisthesis condition and that some people with spondylolisthesis remain asymptomatic for their entire life. At trial, however, Hendler attempted to testify that Kirschhoffer's X-rays showed sclerosis and osteophyte formations that made it likely that her condition would not remain asymptomatic. Because defendants offered no excuse as to why the new opinion was not included in the exchanged reports, we agree with plaintiffs that Supreme Court properly excluded the testimony.”

Pola v Nycz, 281 AD2d 839 (3d Dept 2001) The trial court allowed D's examining physician to testify on the issue of causation even though it wasn’t addressed in his examination report.

“…. Considering that the specific injury claimed by plaintiff--a chondral defect in her right knee--was first diagnosed more than four years following the accident, that plaintiff had sustained another knee injury which could not be ruled out as the cause of that condition, and that plaintiff's own medical expert could state only that the accident possibly caused it, we agree with defendant that causation was an issue throughout the trial. Under the circumstances, the absence of a specific opinion concerning causation in the examining physician's report did not preclude his trial testimony on that issue.”

4th Dept

Clemons v Vanderpool, 289 AD2d 1078 (4th Dept 2001) D’s expert (presumably the examining physician) was properly allowed to testify as to lack of causation even though causation wasn’t mentioned in his report. Causation is implicit in the damages issue.

Christopher v Dokko, 55 AD3d 1367 (4th Dept 2008) Court properly refused to limit the testimony of D's two examining doctors to the findings and conclusions set forth in their original medical reports. D provided P with the amended or supplemental reports only 20 days prior to the commencement of trial.

Tojek v Root, 34 AD3d 1210 (4th Dept 2006) Testimony of D’s examining physician was properly limited to the information in his original report and 3101(d) response. D made no showing of good cause for failure to provide additional subject matter in an amended 3101(d) response until the middle of trial.

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1st Dept

Gilbert v Luvin, 286 AD2d 600 (1st Dept 2001) P alleged nerve damage to his eye during a lumbar surgery. D’s 3101(d) merely stated the expert's ultimate conclusion and neglected to disclose that he would testify that the cause of P’s injury was actually anemia and hypotension. The trial court allowed the expert to testify, but reversed itself during post-trial motion practice, and granted a new trial. The First Department reversed the post-trial ruling. Ds' noncompliance was not willful. Nor was it prejudicial since defense counsel addressed the anemia/hypotension theory during the testimony of other experts without objection by P, P never requested an adjournment to prepare and recall his expert to give rebuttal testimony, and lastly, P’s experts themselves admitted awareness of the anemia/hypotension theory and the medical literature supporting it.

Bunting v Selesnick, 300 AD2d 26 (1st Dept 2002) In this medical malpractice case, exclusion of expert testimony on the issue of causation, presumably because it was not covered in the 3101(d) response, was reversible error. The court noted that deviations from accepted standards of surgical care and causation are so intertwined that expert testimony on both issues is required to be placed before the jury.

Lewis v Port Authority of New York and New Jersey, 8 AD3d 205 (1st Dept 2004) Trial properly exercised its discretion in limiting the testimony of Ds' experts to matters detailed in the CPLR 3101 (d) disclosure reports.

Moreno v Fabre, 47 AD3d 545 (1st Dept 2007) Expert's testimony that P’s loss of vision was caused by an underlying condition rather than by D's treatment did not “transcend the scope of information” set forth in expert disclosure or medical reports, received well before trial. The trial court providently exercised its discretion in permitting P’s medical expert to give an opinion about P’s MRI films even though his expert disclosure didn’t provide that he would provide such opinion. It held:

“Defendant was properly notified that the expert would be called to testify at trial and was given his reports, which noted that he had reviewed plaintiff’s previous medical reports that defendant knew included in the MRI report. Furthermore, the expert’s opinion of the 126

©Doctors & Their Records at Trial Benedene Cannata, 2015 MRI films and his conclusion about plaintiff’s condition was substantially the same as the MRI report. In any event, defendant was not surprised or prejudiced by plaintiff’s failure to disclose that his expert would offer an opinion of the MRI films at trial since the MRI report and the expert’s reports were clearly central to plaintiff’s case and since the expert’s testimony did not transcend the scope of information set forth in the applicable expert disclosure form or the previously exchanged medical reports, received well before trial.”

McNeill v LaSalle Partners, 52 AD3d 407 (1st Dept 2008) The trial court should have allowed D' s expert orthopedist to testify that a 1997 incident was not the proximate cause of a meniscus injury that first came to light in 2004. Even though the 3101(d) response didn't give notice of this testimony, that was apparently because P never advised that his expert would be testifying that the meniscus injury was related to the accident. “Fairness demanded” that D be permitted to present expert testimony to counter P’s surprise causation theory. The First Department also noted that the supplemental 3101(d) response relating to this orthopedist advised that his testimony "would be based on his review of the medical records and other testimony offered at trial."

2d Dept

Gregory v Mulligan, 266 AD2d 344 (2d Dept 1999) The trial court erred in permitting D's examining physician to testify that, based on his review of a bone scan immediately prior to trial, P hadn’t suffered a fracture. Earlier, D had served that physician's medical report in compliance with 22 NYCRR 202.17(h) and CPLR 3101(d), and the report stated "(f)rom the records it is apparent that (P) had a fracture". Thus, his contradictory testimony at trial surprised and prejudiced P, as the existence of a fracture had not previously been disputed. Since D failed to make the requisite showing of good cause for the admission of this contradictory testimony, a new trial was warranted.

Velez v Policastro, 1 AD3d 429 (2d Dept 2003) Critical to the issue of proximate cause in this medical malpractice action was the number of surgical tacks used during P’s hernia operation. D’s expert apparently gave "surprise testimony" regarding the number of tacks used. The testimony was not precluded (apparently it just came out during trial). However, this surprise constituted "good cause" to allow P to call an undisclosed medical expert.

Dalrymple v Koka, 2 AD3d 769 (2d Dept 2003) In this medical malpractice case, Ds’ 3101(d) disclosures advised that their experts would testify that P’s labial injury was an accepted risk of vaginal delivery, 127

©Doctors & Their Records at Trial Benedene Cannata, 2015 wasn’t caused by malpractice, and was exacerbated by P’s smoking. At trial however, these experts testified that the injury had been caused by P’s long-standing problems with condyloma and HPV. P’s counsel objected as there was absolutely no mention of this theory in the expert disclosure. Ds’ argument that P could not have been surprised by the testimony because it was documented in the medical records was flatly rejected, the court noting "… a previously undisclosed theory is not deemed admissible merely on the ground that it is mentioned in a P’s medical records." The expert's testimony was so far removed from the description in the 3101(d) disclosure that a new trial was necessary.

Gagliardotto v Huntington Hosp., 25 AD3d 758 (2d Dept 2006) “P s contend that the trial court should have precluded the testimony of the respondent's expert because it varied from the expert witness statement served before trial. We disagree. CPLR 3101(d)(1) requires a party, upon request, to ‘identify each person whom the party expects to call as an expert witness at trial and ••• disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify ••• and a summary of the grounds for each expert's opinion.’ The expert witness statement served by the respondent did not specifically indicate that the expert would testify that an infant's rapid descent during the second stage of delivery could cause Erb's Palsy. However, the statement did disclose that the expert would testify that ‘maternal expulsive forces’ could cause Erb's Palsy. The statement also indicated that the expert could be “expected to comment upon any and all testimony adduced at trial by (the) plaintiff,” and two of P s' witnesses offered opinions as to whether or not rapid descent could cause Erb's Palsy. Under these circumstances, the expert witness statement was not so inadequate or inconsistent with the expert's testimony as to have been misleading, or to have resulted in prejudice or surprise. Supreme Court providently exercised its discretion in refusing to preclude the testimony of the respondent's expert.”

Farrell v Gelwan, 30 AD3d 563 (2d Dept 2006) Expert's testimony that P’s loss of vision was caused by an underlying condition rather than by D's treatment did not “transcend the scope of information” set forth in expert disclosure or medical reports, received well before trial.

Durant v Shuren, 33 AD3d 843 (2d Dept 2006) D complained that P didn't give notice of a new theory of liability until the eve of trial. P responded that the 3101(d) disclosure and bill of particulars were sufficient to put D on notice that they would be claiming negligence postoperative care. The appellate court disagreed -- the theory was not discernible from the "numerous and extremely generalized allegations" found in the bill of particulars or the 3101(d) responses. As P failed to demonstrate good cause for not disclosing the new and 128

©Doctors & Their Records at Trial Benedene Cannata, 2015 significantly different theory of recovery until one day before trial, and as D was prejudiced thereby, the result was a new trial.

Wilson v Hallen Const. Corp., 40 AD3d 986 (2d Dept 2007) As P failed to object when the defense doctor’s testimony supposedly exceeded the scope of the 3101 (d) disclosure, the argument would not be considered by the appellate court.

Popkave v Ramapo Radiology Associates, P.C., 44 AD3d 920 (2d Dept 2007) Ds expert's testimony in a failure to diagnose breast cancer case held fully consistent with the pretrial disclosure statement. The more interesting dicta is that “… any additional testimony the witness gave regarding P’s social history and the causes of breast cancer in general either was of collateral significance or constituted general background information, which did not render the pretrial disclosure statement inadequate or misleading, and did not result in prejudice or surprise to P.”

Rabinowitz v Elimian, 55 AD3d 813 (2d Dept 2008) Although P’s 3101(d) disclosure in this medical malpractice case didn’t specifically indicate that the expert would testify that D improperly aligned the severed ends of the patient’s rectal sphincter muscle, the statement did recite that the "expert will opine that D utilized substandard technique with regard to the repair of a third degree extension of a midline episiotomy." This was good enough. The trial court properly refused to preclude the expert’s testimony.

Ryan v St. Francis Hosp., 62 AD3d 857 (2d Dept 2009) The trial court properly precluded P’s expert from testifying as to departures from the standard of care by certain nonparty physicians. P failed to give notice of the specific subject matter of the expert testimony, and the proposed testimony would have been on a different theory that was not readily discernable from the bill of particulars or the 3101(d) disclosures.

Apikoglu v Leitman, 92 AD3d 623 (2d Dept 2012) P’s expert was properly precluded from testifying that the failure to perform CT- scans on P’s decedent on certain dates, and the failure to perform a third surgery, were departures from the accepted standard of care. P “failed to give notice prior to trial of the specific subject matter of the expert's testimony setting forth these different theories of recovery, which were not readily discernable from the plaintiff's bills of particulars and the statements in her CPLR 3101(d) responses.”

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Citron v Northern Duchess Hospital, 198 AD2d 618 (3d Dept 1993) In this case D hospital allegedly failed to have blood products available to treat a pregnant patient whose uterus had ruptured. Although P’s expert's trial testimony deviated from the 3101(d) disclosure, it was allowed. The court reasoned that D had not been deliberately deceived or misled, and the bill of particulars provided D with sufficient notice of P’s theory and the testimony advanced.

Law v Moscowitz, 279 AD2d 844 (3d Dept 2001) The complaint in this medical malpractice action alleged negligent performance of spinal reconstructive surgery, “the failure to monitor and ensure that all medical care, treatment and attention rendered before, during and after surgery were in accord with proper and accepted medical standards and the failure to timely and accurately diagnose P’s symptoms and medical condition.” The bill of particulars reiterated these allegations. At the start of trial, defense counsel moved to preclude P’s neurologist expert on the ground that P’s theory of failing to monitor blood pressure and urine output during the course of surgery was "markedly and radically different from the theory which was set forth in the expert witness disclosure." The trial court agreed, precluded the witness, and upon preclusion dismissed the complaint. The Third Department, looking closely at P’s 3101(d) response, found that it covered P’s theories. The response, using both general and specific language, is worth reprinting here.

“Plaintiff's expert is further expected to testify that D s were negligent and deviated from accepted standards of medical and surgical care by failing to properly diagnose (Law's) signs, symptoms and complaints in a prompt and timely manner. More specifically, (plaintiff's) expert is expected to testify that (Law's) decreased urine output during surgery (and) post-operatively until such time as the severed ureter was finally discovered, should have alerted (the) Defendants to the possibility that (Law's) ureter had been damaged and/or severed.

“Plaintiff's expert is further expected to testify that D s were negligent and deviated from accepted standards of medical and surgical care by failing to promptly order necessary diagnostic studies to determine the cause of (Law's) signs, symptoms and complaints. More specifically, Defendants failed to order timely and prompt consults to determine the cause of (Law's) decreased urine output and abdominal pain.” (Emphasis original.)

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Reversing and granting a new trial, the court noted that if defense counsel was surprised or unprepared for the particular theories P advanced, “that was not the result of any failure on the part of P or her counsel.” Defense counsel could have, but did not seek further details. 4th Dept

Dombrowski v Moore, 299 AD2d 949 (4th Dept 2002) In this medical malpractice action, D’s expert was precluded from testifying as to causation because that subject was not listed in the initial 3101(d) response. The supplemental response, which did list it, was served six days into the trial and thus was deemed untimely.

“The record does not support the contention of defendant that the delay occurred because he was unaware that plaintiff would allege at trial that the esophageal tear necessitated the 1997 pyloroplasty. That allegation is set forth in plaintiff's verified bill of particulars, and thus defendant's "proffered excuse does not rise to the level of 'good cause shown' so as to avoid preclusion of the subject expert testimony" (Klatsky v Lewis, 268 AD2d 410, 411 quoting CPLR 3101 (d)(1)(i); see Zarrelli v Littauer Hosp., 176 AD2d 1181, 1182). We further conclude that the court properly precluded testimony from a nurse on causation based on the preclusion of the expert's testimony on that subject.”

Pilecki v Cromwell, 300 AD2d 1007 (4th Dept 2002) mt rearg or lv app den. 303 AD2d 1060 (2003) In this obstetrical malpractice case, P claimed that Ds failed to induce labor when the infant was in fetal distress. P and D hospital served their expert disclosures contemporaneously three weeks before trial. It was at this time that P learned that D intended to prove that the infant's injuries were caused by an intrauterine infection resulting from Coxsackie virus, apparently based on certain medical testing. The trial court permitted the testimony, to which the expert witness testified with a "100% degree of certainty," and Ds won the case. The Fourth Department felt that the trial court acted within its discretion in allowing the testimony. However, since this was a "new and highly complex defense" revealed on "the eve of trial," P had been unduly prejudiced by Ds’ providing her with insufficient information concerning the nature of the test with insufficient time to investigate. Consequently, P was unable to adequately prepare for trial. In a 3-2 decision, P was granted a new trial. Presumably, the trial court should have granted P’s counsel more time to prepare for the case. However, as the two dissenting justices noted, P never asked for a continuance. They also felt that P’s expert did present rebuttal evidence in that he opined that D's testing procedures were flawed and yielded invalid results.

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Ruddock v Happell, 307 AD2d 719 (4th Dept 2003) The issue in this automobile case was whether P had sustained a wrist fracture. The trial court erred in striking portions of D's expert testimony concerning a CAT scan. The testimony was not so inconsistent with the information and opinions contained in the expert witness disclosure, nor so misleading as to warrant preclusion or reversal.

Lidge v Niagara Falls Medical Center, 17 AD2d 1033 (4th Dept 2005) This was a negligence/medical malpractice action alleging premature birth and subsequent death of the newborn. Shortly before trial, P s retained a new expert because their prior expert was "uncooperative," and served a new 3101 (d) disclosure, which was apparently accepted. It also seems that the expert attempted to testify to theories of negligence outside that new disclosure. That testimony was properly precluded, since Ds established that they would be prejudiced.

Miller v Galler, 45 AD3d 1325 (4th Dept 2007) P had sufficient notice of the defense expert's testimony as to septic shock syndrome: it wasn’t so inconsistent with the information and opinions in the 3101(d), nor was the 3101(d) so misleading, as to warrant preclusion.

Blanchard v Lifegear, 45 AD3d 1257 (4th Dept 2007) The trial court improperly precluded D’s medical and vocational rehabilitation experts from testifying as to whether P had sustained a permanent injury and was able to return to work. The Fourth Department found the 3101(d) disclosures had been timely, and at any rate P had failed to show prejudice. It moreover noted that those experts’ later reports contained new information. Also, the defense physician's opinion that P had sustained a serious injury was logically consistent with the opinion of one of his prior reports. The result was a new trial.

Rivenburg v Highland Hosp. of Rochester, 72 AD3d 1571 (4th Dept 2010) In this medical malpractice action concerning the loss of P’s colon, D’s expert was properly precluded from offering testimony about the potential side effects of a particular antibiotic, because none of P’s treating physicians testified that they declined to treat P with that antibiotic due to any potential side effects. Moreover, P’s expert didn’t raise a new theory of medical malpractice liability from what was in the bill of particulars or expert disclosures. The challenged testimony just “provided a possible explanation” for why certain treatment was ineffective.

Byrnes v Satterly, 85 AD3d 1711 (4th Dept 2011) P’s 3101(d) disclosure in this medical malpractice action advised that his expert 132

©Doctors & Their Records at Trial Benedene Cannata, 2015 would address “the treatment rendered to plaintiff ... in prescribing Zyprexa” ; “the lack of adequate warnings regarding the risks of taking Zyprexa”; “the lack of informed consent”; and “the standard of care for physicians prescribing Zyprexa and [D's] deviation from the standard of care.” In a 3-2 decision, it was held error for the trial court to preclude the expert from testifying to the effect that D was negligent in failing to monitor P after prescribing the medication at issue. This testimony wasn’t “so inconsistent with the formation and opinions contained [in the 3101(d) disclosure], nor so misleading,” as to warrant preclusion. Moreover, the complaint contained allegations of negligence in failing to monitor plaintiff’s medication and condition.

Testimony Comporting with Bill of Particulars

Thomas v 14 Rollins Street Realty Corp. 25 AD3d 317 (1st Dept 2006) Trial court properly precluded P’s treating physician from testifying about the need for future knee replacement surgery, where such surgery was not mentioned in either P’s bill of particulars or expert disclosure statement, or even in his physician's own records, and where Ds could have been expected to retain their own knee specialist to assess possible future knee surgery.

Palchik v Eisenberg, 278 AD2d 293 (2d Dept 2000) Trial court properly struck the testimony of P’s expert, since it went beyond the scope of the allegations contained in the bill of particulars.

Diarassouba v Urban, 24 AD3d 602 (2d Dept 2005) In a medical malpractice action, Dr. Urban was an orthopedic surgeon, and Dr. Lubino and Dr. Horiuchi, were anesthesiologists. P alleged, inter alia, that during a 10-hour operation on P’s left leg and knee, Ds failed to reposition P’s non-operative right leg, deviating from good and accepted medical practice, resulting in injury to the right leg. 133

©Doctors & Their Records at Trial Benedene Cannata, 2015 P called Dr. Urban and, over objection, questioned him on "compartment syndrome," a condition that was not alleged as an injury in the bill of particulars. Allowing the jury to consider proof of such condition resulted in substantial prejudice to D and warranted a mistrial.

Hammond v Welsh, 29 AD3d 518 (2d Dept 2006) Trial court properly permitted a treating physician to testify concerning the likelihood that P would need future knee replacement surgery. The need for future surgery was disclosed, albeit in general terms, in the bill of particulars.

Brzozowy v Elrac, Inc., 39 AD3d 451 (2d Dept 2007) Expert testimony proffered by P regarding his need for future hip replacement surgery was not admissible absent specific allegation of the need for such surgery in any of his bills of particulars.

Chapman v State, 227 AD2d 867 (3d Dept 1996) Improper to allow expert testimony concerning injuries and conditions not set forth in the bill of particulars.

Acunto v Conklin, 260 AD2d 787 (3d Dept 1999) It was improper to allow jury to consider evidence of a medical condition not set forth in bill of particulars.

Basis of Opinion

Expert opinion evidence must be based on facts in the record or personally known to the witness. Cassano v Hagstrom, 5 NY2d 643 (1959); People v Sugden, 35 NY2d 453 (1974).

1st Dept

Easley v City of New York, 189 AD2d 599 (1st Dept 1993) P claimed that he had been beaten by police officers, causing a fractured tibia, aggravated by osteomyelitis. At trial, P didn't call the physician who had been treating him for some years until the time of trial. Instead, he called a medical expert who had never examined him, and who based his testimony on a portion of the medical records

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©Doctors & Their Records at Trial Benedene Cannata, 2015 as well as on a conversation he’d had with P’s attorney on the morning of his scheduled appearance. Given that P’s credibility was central to the case, it was highly prejudicial to allow P’s expert to testify about the history of the injury and to speculate about P’s current physical condition.

Feliciano v Ford Motor Credit Company, 28 AD3d 221 (1st Dept 2006) P’s treating orthopedic surgeon testified that, assuming that P had never previously experienced a problem with his knee, the twisting movement he felt during an auto collision was consistent with his injury (a torn meniscus). On appeal, D argued that the surgeon's opinion was based on an incorrect assumption, as P had indeed had an x-ray for a knee complaint four months earlier. Nice try, but no dice. The First Department noted that D had never asked the surgeon whether awareness of the prior x-ray would change his opinion. This was their strategy, and they benefited from it as much as possible. The court also found that the facts on which the surgeon had based his opinions were fairly inferable from the evidence, and that D’s argument went to the weight and credibility (not the admissibility) of the surgeon's testimony.

Trombin v City of New York, 33 AD3d 564 (1st Dept 2006) Trial court properly permitted D's examining orthopedist testify as to his interpretation of MRI films. The orthopedist had reviewed the actual films, and P had notified the court of the intention to introduce the films into evidence.

Cross Continental Medical PC v Allstate Ins. Co., 13 Misc 3d 10 (App Term 1st Dept 2006) "Plaintiff's challenge to the reliability of the medical records and reports relied upon by defendant's expert is unavailing given the fact that the records were prepared by plaintiff's own principal, who personally treated the assignor and conducted the tests in question. In these circumstances, plaintiff may not be heard to argue that defendant's expert opinion was not derived from a "professionally reliable" source or to otherwise challenge the reliability of its own medical records and reports."

Simon v Econocraft Worldwide Mfg., Inc., 38 AD3d 303 (1st Dept 2007) “The physicians’ reliance on P’s statements to them that her first accident caused her second accident amounts to nothing more than speculation, and falls far short of the standard of a reasonable degree of certainty that expert opinion evidence is required to meet.”

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Jill S. v Stephen S., 43 AD3d 724 (1st Dept 2007) P's expert's opinion regarding a child's physical and mental condition was hearsay, as it was based on documents that weren’t admitted into evidence.

Gaston v City of New York, 59 AD3d 281 (1st Dept 2010) D's expert was properly permitted to comment on surgical photographs offered into evidence by P.

2d Dept

Velez v Svehla, 229 AD2d 528 (2d Dept 1996) In this MVA case, D’s expert claimed that P suffered from a congenital back condition, and a bulging – not herniated – disk. Over objection, the expert also testified: “The statistics show in completely asymptomatic individuals 20 to 39 years of age who never complained of back pain in their life, 22 percent show a herniated disk, 56 percent show a bulging disk, 50 percent show a degenerative disk and 1 percent show spinal stenosis in individuals who never complained of back pain in their life. * * * So statistically it's extremely rare to take an MRI of the cervical and lumbar spine on anybody, even a young person, and get completely negative studies.”

The basis for these statistics, however, wasn’t revealed. As there was no indication that the testimony was reliable, and not mere speculation, the testimony was inadmissible as lacking foundation. Moreover, since this testimony was “highly prejudicial” the result was a new trial.

Cohn v Haddad, 244 AD2d 519 (2d Dept 1997) In this medical malpractice case, three subsequent treating physicians testified for P. Apparently, each physician had reports and/or letters from the other physicians in his medical file. The Second Department noted that a physician's office records, including medical opinion, are admissible to the extent that they are germane to diagnosis. Thus, the reports of other physicians contained in each doctor's records generally are admissible. In this case however, the trial court did not err by barring one of the physicians from reading statements contained in one of the other physician’s reports – that would have been bolstering, since that other physician was also testifying at trial.

Feger v Goldberg, 250 AD2d 727 (2d Dept 1998) At the trial of this medical malpractice action, P’s expert testified as to numerous acts that he believed constituted deviations from accepted medical practice. One of 136

©Doctors & Their Records at Trial Benedene Cannata, 2015 them was that D had injected 10 times the recommended dye into P’s spine when performing a myelogram. This last deviation was based on the expert’s error in equating 1 ml with 1/10th of a cc. After the close of P s' evidence, defense counsel pointed out that, in fact, 1 ml equals 1cc. the court took judicial notice of that fact, struck the expert's entire testimony as “incompetent,” and dismissed the action for failure to establish a prima facie case. Held: it was error to strike the expert’s entire testimony based on a single miscalculation. It was for the jury to decide how that would affect the expert’s credibility. Only one of the various deviations related to dosage. While P s' counsel posed his proximate causation question based on “these deviations” as a single group, the court should have instructed the jury as to the single miscalculation and stricken only the testimony related thereto. New trial for P.

Erosa v Rinaldi, 270 AD2d 384 (2d Dept 2000) D's medical expert had not examined P. He based his opinion on D doctor’s office records, operative report, post-operative X-rays, and reports prepared by four physicians who had examined P. But D doctor never took the stand, his office records, operative report, and X-rays were never admitted into evidence, and only two of the four examining physicians testified. Although the court agreed, over objection, to allow D 's expert to testify “subject to connection”, as it turned out, D failed to establish an adequate factual basis for the admission of the opinion testimony of his sole expert witness.

Ferrantello v St. Charles Hosp. & Rehabilitation Ctr., 275 AD2d 387 (2d Dept 2000) P's examining medical expert was properly permitted to testify that P suffered a torn meniscus as a result of her accident. The expert's opinion was based on his own examination, a review of the certified hospital records, a second physician's medical records, an MRI report, and X-rays. Although no proper foundation was laid for the admission of the MRI report and X-rays, their admission into evidence was harmless error. The expert relied on those materials primarily to confirm the conclusions he had reached from his exam and record review. Moreover, the materials were “of (the) kind accepted in the profession as reliable in forming a professional opinion”

Homsey v Castellana, 289 AD2d 201 (2d Dept 2001) P failed to offer into evidence the medical records on which her expert witness relied. Before an expert may testify as to matters contained in such records, but not personally known to the expert, such records must be received in evidence. The result was a new trial. 137

Matszewska v Golubeya, 293 AD2d 580 (2d Dept 2002) Trial court properly permitted P’s expert to give his opinion regarding P’s injuries based, inter alia, on his examination of P and his review of hospital records that were in evidence.

Bruce-Bishop Jafar , 302 AD2d 345 (2d Dept 2003)

“Where a proper foundation is laid, a physician's office records or hospital records, including medical opinion, are admissible as evidence at trial to the extent that they are germane to diagnosis and treatment (see Williams v Alexander, 309 NY 283, 287, 129 NE2d 417; Wilson v Bodian, 130 AD2d 221, 231; CPLR 4518[a] ). Thus, the office records of P’s treating physicians were properly admitted into evidence.”

“In addition, D's experts were entitled to rely on the facts set forth in those records, as they did not base their expert opinions upon the conclusions contained in the records (see O'Shea v Sarro, 106 AD2d 435, 437; Borden v Brady, 92 AD2d 98).”

Scanga v Family Practice Associate of Rockland, P.C., 27 AD3d 547 (2d Dept 2006) The defense expert in this medical malpractice case, a pathologist, failed to establish the reliability of re-cut biopsy slides. There was no evidence, apart from conjecture, that the slides were actually re-cut from the original biopsy sample. His testimony should have been stricken.

Astrel v Yarborough, 31 AD3d 356 (2d Dept 2006) Given that P’s attorney admitted that his medical expert would be basing his opinion “at least in part”, on medical records that would be inadmissible at trial, that medical expert was precluded. The decision omits any discussion of the nature of the records. Because that medical expert wouldn’t be testifying, the judge dismissed the case.

Kerr v Vinokur, 37 AD3d 418 (2d Dept 2007) The trial court permitted a defense expert to testify, on direct examination, about the lack of any "significant study" relating to the size of a patient's pupils to certain alleged side effects of LASIK surgery. Assuming it was error for the court to permit such testimony, it didn't substantially influence the result of the trial. Immediately after that testimony, the expert explained that his opinion was based, among other things, on his personal experience in having performed approximately 33,000 laser procedures,

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©Doctors & Their Records at Trial Benedene Cannata, 2015 and having observed that the great majority of his patients did not develop the alleged side effects "regardless of pupil size."

Antoniato v Long Island Jewish Medical Center, 58 AD3d 652 (2d Dept 2009) P's expert properly opined, based on D doctor’s letters to P’s referring neurologist and an MRI report showing a post-operative infection originating at C4-C5, that D departed from good and acceptable medical practice by using a contaminated needle during surgery. The decision doesn’t confirm whether the films or report were in evidence.

Ryan v St. Francis Hosp., 62 AD3d 857 (2d Dept 2009) P’s expert was properly precluded from testifying as to whether a particular physician was the attending physician of record and in charge of P’s care during P’s hospitalization, since there were no facts in the record to support that opinion.

Reilly v Ninia, 81 AD3d 913 (2d Dept 2011) In this obstetrical malpractice case, one of the defendant doctors, who was the director of the defendant hospital’s Ob/Gyn Department, basically testified that a delivery nurse had departed from accepted practice. The hospital's obstetrical expert of course testified that the nurse didn’t depart from accepted practice. The problem with his testimony was that he made certain assertions as to what transpired that weren’t supported by the evidence.

“The conclusions reached by the hospital's expert assumed facts not supported by the evidence, were not based on any facts in the record or personally known by the witness, and were not supported by facts fairly inferable from the evidence…. ‘An expert opinion grounded on a nonexistent fact is not significantly probative.’”

Because the testimony of the hospital's expert was based on “mere speculation unsupported by any direct evidence”, that part of the verdict that was in favor of the hospital was set aside as against the weight of the evidence.

Hyung Kee Lee v New York Hosp. Queens, 118 AD3d 750 (2d Dept 2014) P's expert anesthesiologist was permitted to testify as to decedent's pain and suffering while being intubated with insufficient sedation. This testimony wasn’t speculative, but was based on facts in the medical record and facts “fairly inferable” therefrom. Based on his expertise and experience in the area of “airway management of patients,” and the information in the record, the anesthesiologist could fairly infer that, during the intubation, except for the first two or three minutes, the decedent was fully

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©Doctors & Their Records at Trial Benedene Cannata, 2015 conscious, though paralyzed at first, “unanesthetized [with] a tube in his throat, making him gag,” and experiencing “conscious distress, suffering, [and] terror.”

3d Dept

Madsen v Merola, 288 AD2d 520 (3d Dept 2001) P’s treating physician was certainly permitted to testify from his own records and those of the hospital where P had been treated, and base his opinion on review of the hospital records. The Third Department unequivocally approved such a practice in affirming the verdict on appeal, stating:

“Although plaintiff's treating physician stated that he could only "assume" the groin injury was caused by the accident, his opinion was based on his physical examination of plaintiff and review of the emergency room records (see, Mattot v Ward, 48 NY2d 455, 399 NE2d 532) and defendants failed to proffer any evidence to controvert that explanation of the injuries sustained.” [Emphasis added.]

Hotaling v CSX Trans., 5 AD3d 964 (3d Dept 2004) The testimony of P’s expert life-care planner was admissible. It was based on a review of P’s medical records in evidence and the trial testimony of three of P’s treating physicians. While two other treating physicians didn’t testify, their testimony wasn’t required because one would have merely provided a second opinion and the other participated in three surgeries attended by physicians who did testify. Thus, the expert's opinion wasn’t based on inadmissible hearsay.

Schou v Whitely, 9 AD3d 706 (3d Dept 2004) At the trial of this case involving two auto accidents, P’s treating orthopedic surgeon testified that his lumbar condition was related to the first accident and neck problems were related to the second accident, which also aggravated the lumbar condition. Ds called two neurologists and a radiologist who opined that P’s conditions were either caused by degenerative disc disease, or weren’t serious or permanent. P challenged this testimony as unsupported. The court disagreed, discerning the foundation to include P’s deposition, relevant medical records and MRI films showing degenerative changes in both the cervical and lumbar regions. The testimony was based on facts in the record and thus properly permitted.

Searle v Cayuga Medical Center at Ithaca, 28 AD3d 834 (3d Dept 2006) P's expert in addictionology opined as to the high probability that defendant anesthesiologist was under the influence of unprescribed pain medications at the time 140

©Doctors & Their Records at Trial Benedene Cannata, 2015 of P’s surgery. This opinion was based on D’s testimony regarding his substance abuse. It was a proper exercise of the court’s sound discretion to allow expert testimony that is based on facts in the record, derived from a source that is professionally reliable or from a witness subject to cross-examination.

Brown v Reinauer Transp. Companies, LLC, 67 AD3d 106 (3d Dept 2009) D’s internal medicine/cardiology expert was properly precluded from testifying, based on his review of P's medical records, that P was suffering from cardiomyopathy resulting in fatigue, impaired balance and body control, which could have caused his fall. The record contained no evidence that P was suffering from any symptoms related to cardiomyopathy at the time of the fall. The proposed “testimony was too speculative to constitute competent expert proof of causation”

Bednarz v Inn on Bridges St., Inc., 68 AD3d 1411 (3d Dept 2009) P's “medical expert” (actually, his treating physician) was properly allowed to testify concerning his diagnosis of P’s coccyx injury based on his reading of X rays (which were in evidence) taken shortly after the accident. This objective evidence, coupled with information garnered from his years of treating P, sufficiently supported his opinion on causation.

Adair v Tully-Kuzman, 91 AD3d 1228 (3d Dept 2012) In this MVA case, P’s treating physician was asked about the effect that trauma to P's lymph nodes and blood vessels would have on her arm. Objection to the question was properly sustained. There was no medical proof that P had suffered any damage to her lymph nodes. The physician didn’t examine P until several months after the accident, and never personally observed anything that linked any alleged lymph node damage to the accident.

4th Dept

Weigert v Baker, 217 AD2d 1011 (4th Dept 1995) Proof relevant to P’s injury was in evidence: she testified as to the accident, her injury, symptoms, disability and treatment. Her medical expert (apparently an examining physician), who had examined her two months before trial, reviewed the medical and hospital records and an MRI report. He testified without objection, to P’s complaints of pain and disability, her medical history, course of treatment, surgery, diagnostic tests, and his own his findings on examination. However, the trial judge refused to allow the doctor to testify to his diagnosis of P’s injury and whether P’s complaints were consistent with a herniated disc. This was error.

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©Doctors & Their Records at Trial Benedene Cannata, 2015 The fact that the witness was not P’s treating physician and had not examined P’s x-ray or MRI films as further diagnostic tools went to the weight of the testimony, not to its admissibility.

People v Beckwith, 289 AD2d 956 (4th Dept 2001) The court erred in allowing a medical expert to testify concerning a study that wasn’t in evidence. The study was hearsay because it was offered as proof of the facts contained in the study. Given the overwhelming evidence of guilt however, the error was harmless.

Neumire v Kraft Foods, Inc., 291 AD2d 784 (4th Dept 2002) P argued that because his expert relied on certain materials, which apparently included reports, that reliance should serve independently as the basis for their admission into evidence. Not so.

There was no discussion as to whether the expert’s opinion was based primarily on the reports or whether they were merely the proverbial “links in the chain’ of data.

Shahram v Horwitz, 5 AD3d 1034 (4th Dept 2004) The trial court erred in precluding P from questioning her medical expert with respect to an operative report of a subsequent surgery, which the expert relied on in formulating his opinion. The operative report was admitted into evidence under the business records exception, and thus was properly commented and relied upon.

Cromp v Ahluwalia, 43 AD3d 1389 (4th Dept 2007) D’s expert testified that his secretary had prepared a file for him to bring to court from Massachusetts, and that she had inadvertently failed to include certain documents. Held: the trial court should not have stricken the expert's testimony on the ground that the expert failed to make available for inspection all of the documents he reviewed in formulating his opinion. CPLR 4515 does not require an expert witness to make available for inspection all of the data used to formulate his or her opinion. It provides only that an expert witness may, on cross-examination, “be required to specify the data and other criteria 142

©Doctors & Their Records at Trial Benedene Cannata, 2015 supporting the opinion.” Moreover, there was no indication that the expert had consulted the missing documentation either in preparation for trial or to refresh his recollection.

Ellis v Emerson, 57 AD3d 1435 (4th Dept 2008) Held: In an MVA case, P's treating physicians were properly permitted to testify concerning the cause of P's injuries despite the fact that neither had reviewed prior chiropractic records. Their failure to review the records “goes only to the weight of the testimony, not to its admissibility.”

Supreme Court

Hornbrook v Greek Peak/Peak Resorts, Inc., 2002 WL 1967928, 2002 NY Slip Op 40348 (U) (Sup Ct, Tompkins County, 2002 Relihan, Jr., J.) Supreme Court held that P's non-treating expert physician could not opine as to P's condition based on reports of treating physicians, unless the reports were independently admitted into evidence. Apparently in this case, P had seen many doctors who generated voluminous records and reports, only select portions of which P’s counsel sought to have the expert testify to.

“Defendant's confrontation interests are squarely implicated when the complete and authenticated records of the treating doctors are not offered and received in evidence and a non-treating expert is permitted to render opinions based upon selected excerpts.

“Here, the out-of-court materials were generated by a series of treating doctors but were not used by the testifying doctor to treat the patient. Hence, it is not the reliability of the out-of-court materials that gives pause but the use to which these records and reports will be put by the testifying but non-treating expert.”

These are just two of the excellent points made in this decision.

Dallarda v Broderick, 2007 NY Slip. Op. 51029U) (Sup Ct Sullivan County 2007, LaBuda, J.) The deceased P’s notes and plaintiff’s attorney’s letter are not reliable material for a medical opinion.

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Testifying or opining based (at least in part) on reports, records, or films that are not in evidence

An expert may rely on out-of-court material if: • it is of the kind accepted in the profession as reliable in forming a professional opinion (the professional reliability exception) or • if the evidence comes from the witness subject to full cross- examination at trial.

Hambsch v New York Transit Authority, 63 NY2d 723 (1984); Lee v Shields, 188 AD2d 637 (2d Dept 1992); Borden v Brady, 92 AD2d 983 (3d Dept 1983); Kosiorek v Bethlehem Steel Corp., 145 AD2d 935 (4th Dept 1988).

Court of Appeals Hambsch v New York Transit Authority, 63 NY2d 723 (1984) The sole basis for the expert's opinion on causation had been imparted to him by an out-of-court discussion with a radiologist. As P presented no evidence to satisfy the professional reliability exception, the expert's opinion was inadmissible. Without expert testimony, there was insufficient evidence to establish P's injury.

State v Floyd Y., 22 NY3d 95 (2013) For discussion of the law on what “basis hearsay” is, and the rules for determining what kinds of “basis hearsay” a psychologist or psychiatric examiner may testify to in an Article 10 proceeding of the Mental Health Law (to detain an accused sex offender in a treatment facility), see this case. The concurring opinion includes a detailed discussion of the professional reliability exception to the hearsay rule, and an endorsement of Wagman v Bradshaw (infra).

1st Dept

Munoz v 608-610 Realty Corp., 194 AD2d 496 (1st Dept 1993) The entire opinion reads: “The report of plaintiff's consulting surgeon was evidence of a kind accepted in the medical profession as reliable in forming a professional opinion. and thus defense counsel's reference to the report in cross- examining plaintiff's treating physician, and use of the findings contained therein in propounding hypothetical questions to one of defendants' medical

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©Doctors & Their Records at Trial Benedene Cannata, 2015 experts, was proper and does not warrant the granting of a new trial on the issue of damages.”

Balsz v A and T Bus Co., 252 AD2d 458 (1st Dept 1998) The argument that the trial court erred in permitting P to use hearsay medical reports to bolster the testimony of her medical expert was unpreserved for appellate review and in any event meritless, “since the hearsay contained in these reports was not the primary basis for plaintiff's expert's opinion…. Nor was there merit to the related argument with respect to P's cross-examination of D's expert, who had been asked to comment on these very same reports in his direct examination.”

Weinstein v New York Hospital, 280 AD2d 333 (1st Dept 2001) Although D failed to preserve the issue for appellate review, the "objection that materials relied upon by [P's examining] experts were never admitted into evidence (was) unpersuasive, since such materials were used primarily to confirm conclusions that the experts had already reached from their own examinations of plaintiff and the properly admitted hospital record.”

Sigue v Chemical Bank, 284 AD2d 246 (1st Dept 2001) In this slip and fall case, P’s treating neurologist should not have been permitted to testify that P suffered an internal derangement of the left knee and detachment of the medial meniscus; such testimony was based on an arthrogram report prepared by a non-testifying doctor that was not addressed to the neurologist, and should not have been admitted into evidence since it constituted an expression of opinion on the crucial issues of the existence and severity of P’s injuries and formed the principal basis for the neurologist's opinion on those issues, not merely a link in the chain of data on which that witness relied.

Kovacev v Ferreira Bros Contracting, Inc., 9 AD3d 253 (1st Dept 2004) P's treating physician was properly precluded from referring to MRI reports in testifying about P's injuries. “A treating physician's opinion at trial cannot be based on an out-of-court interpretation of MRI films prepared by another health-care professional who is not subject to cross-examination where, as here, the MRI films are not in evidence and there was no proof that the interpretation is reliable.”

Murphy v Colombia University, 4 AD3d 200 (1st Dept 2004) The trial court improperly permitted P's treating physician to testify as to the contents of an MRI report without any evidence of the reliability of the reports. The court cited Hambsch and Wagman.

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Lopez v Consolidated Edison Co. of New York, Inc., 40 AD3d 221 (1st Dept 2007) The unrebutted testimony of P's examining orthopedist was not wholly dependent on an MRI that wasn’t in evidence. The doctor examined P and reviewed the operative report of the arthroscopic surgery (which corrected and elaborated on the pre-operative diagnosis) to arrive at his conclusion.

State v J.A., 21 Misc 3d 806 (Sup Ct Bronx County 2008, Riviezzo, J.) Citing both Wagman v Bradshaw and O'Brien v Mbugua, Judge Riviezzo offers a detailed analysis of the professional reliability exception in this Article 10 petition seeking civil management of a sex offender. Discussing the use of presentence reports under Article 10, the court held that state's psychiatric expert could, under the professional reliability hearsay exception, rely on pre-sentence reports and Department of Parole records in order to formulate a psychiatric opinion as to whether the respondent has a “mental abnormality” as that term is defined in the statute.

2d Dept

Richter v Trailways of New England, 28 AD2d 737 (2d Dept 1967) It was prejudicial error to allow P’s treating doctor to testify to matters shown on x-rays that the doctor had taken but were not introduced into evidence. (Compare with Lee v Huang, infra.)

Holshek v Stokes, 122 AD 2d 777 (2d Dept 1986) P’s doctor was properly allowed to testify to his opinion -- based on an x-ray, a report, and his own examination -- that P had suffered a torn meniscus. D had a copy of both the report and the x-ray. And even though they were not admitted into evidence, the expert could be cross-examined on them.

Flamio v State of New York, 132 AD2d 594 (2d Dept 1987) This is an old case but it is often cited. It’s interesting because it addresses the testimony of two experts and arrives at a different conclusion as to each. P's expert was properly prohibited from testifying with respect to a written report prepared by second physician, because the second physician didn’t testify at trial. D's expert was allowed to testify with respect to the CAT scan findings of a radiologist because the expert was able to independently arrive at an opinion as to diagnosis. There have been cases like Flamio in which physicians were permitted to testify concerning x-rays that were not in evidence, the court citing the professional reliability exception. However, in those cases the physician testified that the out-of-court material was used only partially, usually to confirm findings made independently of the material.

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Nuzzo v Castellano, 254 AD2d 265 (2d Dept 1998) P's expert, who had not physically examined P, should not have been permitted to testify as to a diagnosis of P's injury based, for the most part, on MRI films that weren’t in evidence. The MRI was not used merely to confirm the expert's opinion formed from other sources but instead was used as a basis for her opinion.

Lee v Huang, 291 AD2d 549 (2d Dept 2002) The trial court properly permitted P’s treating physician to testify about his own interpretation of x-ray films that had not been admitted into evidence. The physician had used the films and reports in his treatment of P and in forming his diagnosis. D ’s expert radiologist however, was properly precluded from testifying as to the interpretation of the same x-ray films and his diagnosis. Unlike the treating physician, he had he never physically examined P the. Thus his diagnosis would have been based primarily on the films not admitted into evidence.

Wagman v Bradshaw, 292 AD2d 84 (2d Dept 2002) P’s treating chiropractor sent him for MRI scans. At trial, the chiropractor was permitted to testify as to the results of the MRI based on his review of the written report. The chiropractor had never reviewed the films himself, and apparently they were not available at trial. The court held that admission into evidence of the written report prepared by a non-testifying health-care provider violated the rule against hearsay and the best evidence rule. The Second Department clarifies the professional reliability exception: The expert may rely on out-of-court material to form an opinion provided:

• it is the type generally accepted as reliable in a particular profession in forming a professional opinion; and • it is accompanied by evidence establishing its reliability.

Moreover, the "professional reliability" exception does not permit an expert witness to offer opinion testimony based upon out-of-court material to establish the truth of the matter asserted in the out-of-court material.”

“Therefore, we reiterate that, while the expert witness's testimony of reliance upon out-of-court material to form an opinion may be received in evidence, provided there is proof of reliability, testimony as to the express contents of the out-of-court material is inadmissible."

In so holding, the court rejected prior Second Department decisions to the contrary to wit, Pegg v Shahin, 237 AD2d 271 (2d Dept 1997). In Pegg, the Second 147

©Doctors & Their Records at Trial Benedene Cannata, 2015 Department had written “in light of the fact that MRI and X-ray reports are data which are ‘of the kind ordinarily accepted by experts in the field’, it was not error for the trial court to permit the physician to testify with respect to the MRI and X-ray report.”

Adkins v Queens Van-Plan, Inc., 293 AD2d 503 (2d Dept 2002) P’s treating neurologist shouldn’t have been permitted to testify that P had an internal derangement and detachment of the medial meniscus, based on an arthrogram report. The report had been prepared by a non-testifying doctor, and wasn't addressed to the neurologist. Moreover, it shouldn’t have been admitted into evidence since it constituted an expression of opinion on the crucial issues of the existence and severity of P's injuries. Here the report was the principal basis for the neurologist's opinion, "not merely a link in the chain of data upon which that witness relied."

DeLuca v Ju Liu, 297 AD2d 307 (2d Dept 2002) It was error to allow the chiropractic expert to testify as to the contents of MRI and EMG tests. The expert didn’t perform the MRI or EMG, didn’t review the actual MRI films or the EMG test results, and neither were in evidence. The expert merely reiterated the conclusions set forth in the reports. Once again the court explained:

“It is well settled that “opinion evidence must be based on facts in the record or personally known to the witness” (Hambsch v New York City Tr. Auth.,). To be admissible, “opinion evidence must be based on one of the following: first, personal knowledge of the facts upon which the opinion rests; second, where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination; and fourth, material not in evidence provided the out-of-court material is of the kind accepted in the profession as a basis in forming an opinion and the out- of-court material is accompanied by evidence establishing its reliability”

Beresford v Waheed, 302 AD2d 342 (2d Dept 2003) It was error to allow P's expert to base his opinion on an MRI report that wasn’t in evidence, and that had been prepared by another healthcare professional who didn’t testify.

Venancio v Clinton Wholesale Florist, Inc., 1 AD3d 505 (2d Dept 2003) The trial court improperly allowed P's expert to read from an MRI report that wasn’t in evidence. The court then told the jury that the report wasn’t in evidence, and instructed it "to disregard any reading from the report." Reversible error was not

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©Doctors & Their Records at Trial Benedene Cannata, 2015 present, and in the absence of any objection to the instruction, the contention that the instruction was inadequate wasn’t preserved for review. What if there had been a proper objection?

Jemmott v Lazofsky, 5 AD3d 558 (2d Dept 2004) It was error to admit MRI reports into evidence and to permit P's medical expert -- who had no personal knowledge of P’s alleged injuries -- to offer redirect testimony regarding their contents. The films weren’t in evidence, and the reports had been prepared by other health-care professionals who didn't testify. It was further error to allow P’s attorney to cross examine D ’s medical expert regarding MRI films and MRI report -- as neither had been admitted into evidence. The result was a new trial.

Finnocchiaro v Wall Street PK-Up Services, 8 Misc 3d 133 (A) (App Term 2d and 11th Jud Dists 2005) P failed to proffer sufficient evidence to establish the reliability of an out-of-court EMG report. The actual EMG test results weren’t in evidence. Neither the treating chiropractor nor P's medical expert performed the EMG, or reviewed the actual results. They merely relied on the test results and reiterated the conclusions of the person who administered it. It was thus error to allow testimony as to the content of the report, requiring a new trial.

Kinard v South Shore Dialysis Ctr., 37 AD3d 545 (2d Dept 2007) “Expert opinion evidence may be admissible if, inter alia, the expert relies upon material not in evidence, provided that the out-of-court material is derived from a witness subject to full cross-examination. Plaintiff’s counsel made an offer of proof that the opinion of plaintiff’s medical expert was based, at least in part, upon radiological reports which were inadmissible at trial. However, the parties agreed that the radiologist who prepared the reports was available to be cross-examined at trial on the reliability of his reports and that the actual x-ray films were admissible. Under the circumstances, plaintiff’s expert could testify, based upon the radiological reports, as to his opinion regarding the cause of the decedent’s injuries.”

Clevenger v Mitnick, 38 AD3d 586 (2d Dept 2007) At trial, P’s treating physician, Dr. Ippolito, testified that the doctors who performed the MRI and EMG scans were reliable, that he used their reports to form a treatment plan, and that these reports were the kind generally accepted by physicians in the diagnosis and treatment of their patients. Over the objection, the court admitted the MRI reports not for their truth, but because the treating doctor relied upon them for diagnosis and treatment of P. 149

©Doctors & Their Records at Trial Benedene Cannata, 2015 Held: “D correctly contends that admission of the MRI reports violated the principles set forth in Wagman v Bradshaw. This court held that the admission of a hearsay MRI report deprived the party against whom the MRI report was offered of the opportunity to cross-examine the declarant.”

Elshaarawy v U-Haul Co. of Mississippi, 72 AD3d 878 (2d Dept 2010) Citing Wagman, held error to permit a treating neurologist to testify as to the contents of an MRI report prepared by an uncalled radiologist. The MRI films weren’t in evidence, P didn’t establish that the report was reliable, and Ds couldn’t cross- examine the radiologist.

3d Dept

Borden v Brady, 92 AD2d 983 (3d Dept 1983) The out-of-court material relied on by the expert, however reliable, must not be the "principal basis" for an opinion on the ultimate issue in the case. Here, a treating orthopedic surgeon testified that his opinion was based on the results of the neurological evaluation made by a physician to whom he had referred P. The orthopedist conceded that he relied on the neurologist's report in expressing his own opinion. The court found:

"The report constituted an expression of opinion on the crucial issue of the permanency of plaintiff's injuries and formed the principal basis for the expert witness's opinion on the same issue, not merely a link in the chain of data upon which that witness relied."

It was error to allow the orthopedist to refer to the neurologist's report while testifying, specifically noting that professional reliability exception was not meant to carve out a new exception to the hearsay rule.

Ciocca v Park, 21 AD3d 671 (3d Dept 2005) affirmed 5 NY3d 835 (2005) After a car accident, P began seeing Dr. L, complaining of limited motion in his right arm. Dr. L referred P to Dr. S, an orthopedic surgeon, who examined him and diagnosed a torn right rotator cuff and torn bicep. The trial court properly precluded Dr. S from testifying at trial as to P's MRI, because Dr. S exclusively relied upon the radiologist's report, "not merely (as) a link in the chain of data."

La Forte v Tiedemann, 41 AD3d 1191 (4th Dept 2007) Trial court properly allowed P’s treating orthopedic surgeon to testify that he had relied on the reports of nontestifying physicians, inasmuch as “those out-of-court 150

©Doctors & Their Records at Trial Benedene Cannata, 2015 materials are of the kind generally accepted as reliable by experts in the medical profession.” NOTE: Court made no determination that the reports were reliable.

O'Brien v Mbugua, 49 AD3d 937 (3d Dept 2008) In the course of treating P, a neurologist ordered an MRI. The MRI films were not admitted into evidence at the trial, and the radiologist didn't testify. Over D's objection, this treating neurologist was permitted to communicate the results of the MRI and to explain the significance of those results in his diagnosis and treatment of P. This was properly allowed as the reliability of the report was established. The court noted:

“(W)here a treating physician orders an MRI clearly a test routinely relied upon by neurologists in treating and diagnosing patients…he or she should be permitted to testify how the results of that test bore on his or her diagnosis even where… the results are contained in a report made by the nontestifying radiologist chosen by the treating physician to interpret and report based on the radiologist's assessment of the actual films.

“Significantly, this is not a case where the expert ‘essentially served as a conduit for the testimony of the report's author’ by doing nothing more than ‘dictating the report's contents’ and, thus, exceeded the bounds of permissible opinion testimony.”

Note the circumstances present here compared to Wagman v Bradshaw (which the Third Department cited as a “but see” ): (1) the witness was a treating neurologist who sent his patient for an MRI with a particular facility, as was his custom and practice; (2) the neurologist didn’t read/interpret films himself but reviewed the MRI report; (3) the neurologist relied on report only partially, he also used his exam and other records; and (4) D made no “best evidence” objection.

In re Anthony WW., 86 AD3d 654 (3d Dept 2011) In this proceeding to terminate parental rights, two psychologists testified that they relied on interviews with third parties as well as various other documents in formulating their expert opinions. Because there was no proper foundation laid to establish that the interviews and documents fell under the professional reliability exception to the hearsay rule, or the degree to which the expert relied on us out-of-court material. Thus the testimony and also the psychologists’ reports based thereon should not have been allowed at the trial.

Greene v Robarge, 104 AD3d 1073 (3d Dept 2013) In this child custody proceeding, the court-appointed forensic psychologist was 151

©Doctors & Their Records at Trial Benedene Cannata, 2015 properly permitted to testify as to her opinion, which was “principally based” on information she had obtained from her extensive interviews with the child’s mother, father and children and in part on information obtained from DSS caseworkers who weren’t subject to cross-examination. The psychologist testified that such information is commonly relied upon within her profession when conducting a forensic psychological evaluation for custody proceedings.

In re Dakota F., 110 AD3d 1151(3d Dept 2013) lv to app den, 22 NY3d 1015 In a Family Court proceeding, the court-appointed psychologist conducted numerous personal interviews with caseworkers, counselors, and others. His report contained detailed accounts of each interview. While some of the interviewees testified and were thus subject to cross-examination, several others did not. Notably, the psychologist never testified as to whether the information obtained from the interviews was professionally accepted as reliable in performing mental health evaluations. As a result, no proper foundation was laid for the admission of the psychologist’s testimony or his report. The admission of both constituted reversible error.

In re Kaitlyn X., 122 AD3d 1170 (3d Dept 2014) In a proceeding to adjudicate a child to be the child of a mentally ill parent, a licensed psychologist, who performed a court-ordered evaluation of the father, was properly permitted to offer an opinion that was based in part on extensive background and collateral source information. He confirmed without contradiction was the type of information reasonably relied on in his profession.

4th Dept

La Forte v Tiedemann, 41 AD3d 1191 (4th Dept 2007) Trial court properly allowed P's treating orthopedic surgeon to testify that he had relied on the reports of non-testifying physicians, inasmuch as "those out-of-court materials are of the kind generally accepted as reliable by experts in the medical profession."

State v Motzer, 79 AD3d 1687 (4th Dept 2010) In this proceeding under the Mental Hygiene Law, petitioner’s psychologist was properly permitted to offer an opinion that was based in part on interviews with treatment providers at a psychiatric hospital who didn’t testify at trial. The psychologist testified that such interviews are commonly relied on in his profession when conducting psychological examinations, thus the professional reliability exception to the hearsay rule applied.

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Seawright v Crooks, 87 AD3d 1345 (4th Dept 2011) The court erred in permitting P's treating doctors to testify to findings of nontestifying medical professionals who conducted independent medical examinations and the contents of their reports.

Supreme Court

Bako v DeCaro, 2002 WL 1610734, 2002 N.Y. Slip Op. 50271(U) (Civ Ct Richmond County 2002 Straniere, J.) P's counsel indicated that he intended to call his treating chiropractor to testify as to the contents of MRI reports that he had received. The reports wouldn't be admitted into evidence and the radiologist wasn't available to testify. D objected, citing Wagman v Bradshaw (discussed supra). The chiropractor appeared for a hearing to conduct a voir dire to investigate the issues raised in Wagman. The resulting decision contained a detailed analysis of the professional reliability exception, taking into account the chiropractor's testimony, pertinent professional licensing statutes, and the criteria articulated in Wagman and other cases. The court considered: (1) that the actual MRI films had been exchanged pursuant to CPLR 4532-a; (2) that the chiropractor had the training to interpret the films himself and to render his own opinion; (3) that he had indeed used the reports merely to confirm the diagnosis he had formulated using his usual chiropractic testing, and to arrive at a treatment plan; (4) that the chiropractor was subject to cross-examination. The Court then analyzed the reports, considering the following questions: (1) Is the report reliable? (2) Who prepared the report? (3) What was the training of the preparer? (4) When was the report prepared? (5) To whom was the report addressed? and (6) What were the circumstances under which it was prepared? In the end, the court ruled that the chiropractor would be permitted to testify as to the contents of three out of four MRI reports.

This well-reasoned decision would appear to be a “must read” for any trial attorney who seeks to lay an adequate foundation for MRI reports when a radiologist is unavailable to testify at trial. Unfortunately however, it is unpublished and seems to have escaped notice by the higher courts.

A Doctor’s Testimony as to Causation

Granted, with few exceptions, this section repeats case blurbs contained in other sections of these materials. However, the researcher may find it useful to have all the cases that touch on causation testimony is one place. 153

Court of Appeals

People v Kohlmeyer, 284 NY 366 (1940) In support of his insanity defense, the criminal defendant offered into evidence the records of his grandmother, which showed that she suffered from certain type of insanity. Concluding that the diagnoses contained in the hospital records were admissible, the Court wrote:

“The diagnoses were ‘records of an act, transaction, occurrence or event made in the course of the doctor's profession’ or the scientific deductions therefrom. (Cf. Goodkin v Brooklyn & Queens Transit Corp., 241 App Div 737, affirmed 265 NY 638, 193 NE 422.) It is always competent for physicians to state their scientific opinions as to the nature of illnesses, their causes and probable results, founded upon the facts disclosed in the evidence. A physician who has examined a patient first states the objective facts of the examination and then his scientific appraisal. Without his opinion, his testimony often has little value.”

1st Dept

Scannapieco v New York City Transit Authority, 200 AD2d 410 (1st Dept 1994) Failure to comply with the medical exchange rule resulted in the preclusion of a psychiatrist from testifying as to causation of emotional damages. The court stated: “Preclusion is an appropriate remedy for violation of the rules regarding exchange of medical information, especially where, as here, the proffered evidence would result in surprise (22 NYCRR 202.17 [8]; Jurgen v Linesburgh, 159 AD2d 689, 690-691).” Compare this case to the Court of Appeals statement in Hamilton v Miller, 23 NY3d 592 (2014) that a report under 202.17(b)(1) only requires a recitation of injuries, diagnosis and prognosis and not a finding of causation.

Schwartz v Tab Operating Co., 239 AD2d 244 (1st Dept 1997) Here the court noted that the doctor's testimony was limited to what was contained in his records, which Ds could have obtained well before trial via authorizations furnished to them. The only reason Ds could have been prejudiced was because they did not avail themselves of the authorizations. The physician was properly permitted to testify as to causation.

©Doctors & Their Records at Trial Benedene Cannata, 2015 treatment, but argued that the doctors should not be allowed to testify as to causation because P had not served a 3101(d) exchange. The court held that, as D had sufficient notice of the proposed testimony, neither surprise nor prejudice would result. To the extent D had been prejudiced by not having the physician's credentials, "that issue could easily be resolved prior to trial." Because the trial court had improperly precluded the doctors from testifying, P was granted a new trial.

Bunting v Selesnick, 300 AD2d 26 (1st Dept 2002) In this medical malpractice case, exclusion of expert testimony on the issue of causation (presumably because it wasn’t covered in the 3101(d) response) was reversible error. The court noted that deviations from accepted standards of surgical care and causation are so intertwined that expert testimony on both issues is required to be placed before the jury.

Finger v Brande, 306 AD2d 104 (1st Dept 2003) The treating physician testified and opined as to causation without service of a §3101(d) disclosure.

Breen v Laric Entertainment Corp., 2 AD3d 298 (1st Dept 2003) P claimed he sustained injuries when D's employee threw him down a flight of stairs. P apparently planned to have a treating physician testify about the injuries, including their cause. D moved in limine to dismiss the complaint, arguing that because P had not served a 3101(d) disclosure or scheduled a physician to testify, he would not be able to relate his injuries to the purported attack. The trial court granted the motion from the bench. The First Department unanimously reversed, stating, that when a P’s intended expert is a treating physician, a failure to serve a 3101(d) notice does not warrant preclusion of that expert's testimony on causation: D has sufficient notice of the proposed testimony to negate any claim of surprise or prejudice, stating

“Where, as here, a plaintiff's intended expert medical witness is a treating physician whose records and reports have been fully disclosed pursuant to CPLR 3121 and 22 NYCRR 202.17, a failure to serve a CPLR 3101(d) notice regarding that doctor does not warrant preclusion of that expert's testimony on causation, since D has sufficient notice of the proposed testimony to negate any claim of surprise or prejudice (see Ryan v City of New York, 269 AD2d 170).”

©Doctors & Their Records at Trial Benedene Cannata, 2015 Also a factor here was that D did not move to compel compliance until after the jury had been selected.

McNeill v LaSalle Partners, 52 AD3d 407 (1st Dept 2008) The trial court should have allowed D' s expert orthopedist to testify that a 1997 incident was not the proximate cause of a meniscus injury that first came to light in 2004. Even though the § 3101(d) response didn't give notice of this testimony, that was apparently because P never advised that his expert would be testifying that the meniscus injury was related to the accident. “Fairness demanded” that D be permitted to present expert testimony to counter P’s surprise causation theory. The First Department also noted that the supplemental §3101(d) response relating to this orthopedist advised that his testimony "would be based on his review of the medical records and other testimony offered at trial."

Hamer v City of New York, 106 AD3d 504 (1st Dept 2013) “The failure to serve a CPLR 3101(d) notice with regard to a treating physician, such as Dr. Geller, is not grounds for preclusion of the physician's expert testimony as to causation where there has been disclosure of the physician's records and reports.”

2d Dept

Karashik v Brenner, 111 AD2d 150 (2d Dept 1985) The report of D’s physical examination doesn’t need to set forth the etiology of P’s injuries and physical condition or causal connection in order to allow the examining physician to testify thereto at trial.

Behan v Data Probe International, Inc., 213 AD2d 439 (2d Dept 1995) Radiology expert should have been allowed to opine as to whether a pedestrian’s herniated discs predated the accident at issue.

Overeem v Neuhoff, 254 AD2d 398 (2d Dept 1998) The trial court precluded a subsequent treating physician from offering expert testimony that the injuries he had surgically repaired had been caused by prior surgery performed by D, on the ground that P had failed to identify the physician as an expert under CPLR 3101 (d)(1). P had, however, exchanged the physician's medical reports as required by the medical exchange rule. The preclusion was error. Because the witness was a treating physician, rather than an expert retained to give opinion testimony at trial, CPLR 3101 (d)(1) doesn’t bar the admission of his expert testimony. Moreover, he could testify to the cause of P’s injuries even though he had expressed no opinion regarding causation in the previously-exchanged reports. 156

De Hernandez v Lutheran Medical Center, 46 AD3d 517 (2d Dept 2007) P’s expert on the issue of causation, a physicist who studied the growth patterns of breast cancer in general, was unqualified to render expert opinion regarding the rate of growth of the decedent's tumor. The expert was not a physician, and showed no specialized knowledge, experience, training, or education from which it could be inferred that his opinion would be reliable.

Lucian v Schwartz, 55 AD3d 687 (2d Dept 2008) The trial court properly allowed P’s treating neurologist to testify for the defense as to the issue of causation, without any 3101(d) disclosure.

3d Dept

Brown v County of Albany, 271 AD2d 819 (3d Dept 2000) P called, as his medical expert, a physician who had treated him some 7 months after the subject accident. The treating physician’s opinion as to causation was based solely on the report of an orthopedist who had treated P shortly after the accident who was not called as a witness but whose records were in evidence. The medical expert had no personal knowledge as to cause of P’s neck, shoulder or back injuries. The reliability of certain out-of-court material – apparently containing a history taken from P regarding the event. – was not established. As the expert clearly considered the orthopedist’s records as the sole source of his opinion on the central issue of causation, his testimony as to causation was properly precluded.

Pola v Nycz, 281 AD2d 839 (3d Dept 2001) D's examining physician was properly permitted to testify on the issue of causation even though it wasn’t addressed in his report.

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Considering that the specific knee injury P claimed was first diagnosed more than four years post-accident, that P had sustained another knee injury which couldn’t be ruled out as the cause of that condition, and that P’s own medical expert could state only that the accident possibly caused it, causation was an issue throughout the trial. Under the circumstances, the absence of a specific opinion concerning causation in the examining physician's report did not preclude his trial testimony on that issue.

Brown v Reinauer Transp. Companies, LLC, 67 AD3d 106 (3d Dept 2009) D’s internal medicine/cardiology expert was properly precluded from testifying, based on his review of P's medical records, that P was suffering from cardiomyopathy resulting in fatigue, impaired balance and body control, which could have caused his fall. But the record contained no evidence that P was suffering from any symptoms related to cardiomyopathy at the time of the fall. The proposed “testimony was too speculative to constitute competent expert proof of causation”

4th Dept

Clemons v Vanderpool, 289 AD2d 1078 (4th Dept 2001) D’s expert was properly allowed to testify as to lack of causation even though causation wasn’t mentioned in his report. Causation is implicit in the damages issue.

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Reported New York cases where forensic pathologists have testified regarding injury causation (that did not include death) include the following:

Raudzens v New York City Transit Authority, 85 AD2d 722 (2d Dept 1981) P claimed that a bus backed over a child's leg causing injury. D’s defense was that the child tripped and fell beneath a forward-moving bus, creating an issue as to whether the bus was traveling forward or backward when it ran over the child. P produced two witnesses who testified that the injuries could only have occurred if the bus backed up. The first was a civil engineer. The second was a forensic pathologist, Dr. Michael Baden, who "relied on the nature of the injuries to support plaintiffs’ theory as to how the accident happened." A defense verdict was set aside, the court finding that the evidence (including Dr. Baden's testimony) so preponderated in P's favor that the verdict could not have been reached on any fair interpretation of the evidence.

Sanchez v MABSTOA, 170 AD2d 402 (1st Dept 1991) A bus passenger claimed that the doors closed on his foot as he was attempting to board, dragging him 15 feet. When his foot came free, he fell into the roadway and the bus wheel pushed over him, fracturing his leg and crushing his foot. A notation in the hospital record however, indicated that his injuries were sustained from the bus’s bumper. A forensic pathologist testified that the fracture to P's tibia was inconsistent with his having been hit by the bumper, since that would have resulted in a fracture higher on the leg. He also testified, in contrast to Ps three medical experts, that the injuries were inconsistent with having been dragged or sideswiped by the bus.

Julia v City of New York, 295 AD2d 591 (2d Dept 2002) A mentally-ill patient brought an action against a city hospital alleging battery and medical malpractice. The patient apparently attacked two hospital police officers in a holding room, and sustained injuries in the ensuing struggle. The patient claimed he had been beaten-up, while the officers asserted that he had fallen to the floor. P’s forensic pathologist testified that the injuries could not have occurred during the fall, but instead resulted from some direct force in the eye by an object such as a fist or walkie-talkie. This testimony was permitted and the jury was free to consider it as it saw fit.

People v Watrous, 270 AD2d 651 (3d Dept 2000) This case involved third-degree assault and endangering the welfare of the child. The child did not die but did suffer head injury. Defendant maintained that the 19- month-old had fallen down a flight of stairs days before. The injuries included 159

©Doctors & Their Records at Trial Benedene Cannata, 2015 pronounced swelling and bruising to the forehead, cheekbones, and eye, a swollen and protruding ear and a missing 2” patch of head hair. The aggregate testimony of the emergency room physician, a pediatrician, and the forensic pathologist who reviewed the child's medical records, x-rays and photographs resulted in a finding that the injuries had been intentionally inflicted included. Notably, “[t]he forensic pathologist opined that the injuries were caused by multiple blunt impacts to the head and face area, consistent with a hand or fist or other similarly shaped blunt object." The Third Department affirmed the conviction based particularly on "the credible medical testimony.” (Id. at 653.)

People v Darrow, 260 AD2d 928 (3d Dept 1999) This case concerned an assault resulting in serious physical injury, but not death. A third party allegedly struck the complainant in the face, knocked him flat on his back (rendering him unconscious) and punched and forcefully kicked or stomped on his head. A few minutes later D, seeing the victim lying on the ground, kicked him in the head an additional two or three times. The issue was whether the ensuing injuries were caused by the defendant or the third party. Both sides called a forensic pathologist to testify as to the potential or occurrence for injury from the various blows. The Third Department found that the People's expert was unable to relate the cause with a reasonable degree of medical certainty, and reduced the conviction to one for attempted assault.

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On Direct Examination For over a hundred years, New York courts have held that asking a physician on direct examination whether his or her opinions have been sustained by the medical literature is improper. In re Mason, 60 Hun 46, 14 NYS. 434 (1891); Foggett v Fischer, 23 App Div 207 (2d Dept 1897); Pahl v Troy City Railway, 81 App Div 308 (3d Dept 1903): McEvoy v Lommel, 78 App Div 324 (1st Dept 1903).

Link v Sheldon, 64 Hun 632 (4th Dept 1892), affd. 136 NY 1 (1892) An antique of a case but still the law. The issue was whether it was permissible to ask an expert on direct examination, after giving his view in a malpractice case, the following question: "Is the view you have just expressed sustained amply by the authorities?" The court held the question was not proper because it “indirectly called for statements from medical books...”

1st Dept

Brown v Speaker, 66 AD3d 422 (1st Dept 2009) This malpractice case concerned the performance of LASIK eye surgery. Held: “Defendants’ expert, testifying about the standard of care at the time of plaintiff’s surgery in 2000, was properly permitted to rely on articles from 1999–2000 journals that were well-respected and accepted by experts in the field.” Note, there is no mention as to when testimony as to these articles was elicited. For what it’s worth, the court also wrote:

“Assuming without deciding that this expert should not have been permitted to testify that the articles said that there was a high satisfaction rate even at high levels of myopia, the error was harmless as such testimony was a very small part of defendants’ evidence as to the standard of care in 2000. Assuming without deciding that plaintiff’s expert should not have been cross- examined about an article that he did not acknowledge as authoritative, having only recognized the journal from which the article came as authoritative, the error was harmless as other secondary sources that he did recognize as authoritative said much the same thing.”

Lipschitz v Stein, 10 AD3d 634 (2d Dept 2004) P brought an action for failure to treat aggressive endophthalmitis following cataract surgery. P s' expert testified that failure to inject antibiotics immediately after 161

©Doctors & Their Records at Trial Benedene Cannata, 2015 the surgery was a deviation from the standard of care. D's expert then testified, over objection, that an injection "would not have made any demonstrable difference." Defense counsel asked "Why is that, Doctor?" to which the expert replied "because there are ... essentially no properly done randomized or controlled comparison studies of the ethicacy (sic ) of any of these preventative approaches in the literature." The study referred to was not admitted into evidence and its reliability was not established. The Second Department found that although opinion in a publication that an expert deems authoritative may be used to impeach an expert on cross- examination, the introduction of such testimony on direct examination constitutes impermissible hearsay. On top of that, on cross, the expert stated that he did not consider any books or articles in the field of infectious diseases "authoritative." For this and other evidentiary rulings, P was entitled to a new trial.

People v Beckwith, 289 AD2d 956 (4th Dept 2001) The trial court erred in allowing a medical expert to testify concerning a study that wasn’t introduced in evidence. The expert's testimony concerning that study was hearsay because it was offered as proof of the facts contained therein. The error was harmless, however, because the proof of guilt was overwhelming

Rosario v New York City Health & Hosps. Corp., 87 AD2d 211 (1st Dept 1982) There being “no doubt that the PDR was admitted into evidence for the truth of what was contained therein,” it constituted inadmissible hearsay.

Spensieri v Laskey, 94 NY2d 231 (1999) In this medical malpractice action, P’s attorney offered an excerpt of the PDR “to prove the truth of the warnings” concerning the drug Ortho-Novum. The Court of Appeals noted:

The PDR is an encyclopedia of medications, written and compiled by drug manufacturers, that is published annually (Martin v Hacker, 83 NY2d 1, 9, 628 NE2d 1308). Along with the drug manufacturer's package insert, the PDR is a means for drug manufacturers to make physicians aware of possible side effects of the drug in question.”

P’s expert asserted that the PDR was authoritative and in and of itself the standard of care, and for this reason the excerpt was offered into evidence. In affirming the trial court, both the Appellate Division and the Court of Appeals held that, as offered, the excerpt was properly excluded as hearsay. The Court acknowledged that the PDR has some importance in determining the standard of care, but standing alone, is not determinative of it. A physician’s standard of care is rightfully measured by the medical profession, not the pharmaceutical 162

©Doctors & Their Records at Trial Benedene Cannata, 2015 companies. Thus, a plaintiff cannot offer the PDR as “stand alone” evidence of the standard of care. The PDR is admissible, however, in conjunction with expert testimony. Specifically, the Court stated:

“The PDR may have some significance in identifying a doctor's standard of care in the administration and use of prescription drugs, but is not the sole determinant. In our view, the information contained in the PDR can only be analyzed in the context of the medical condition of the patient. The testimony of an expert is necessary to interpret whether the drug in question presented an unacceptable risk for the patient in either its administration or the monitoring of its use.”

Thus, a plaintiff will not be prohibited from offering testimony concerning his or her expert's professional evaluation of Ds' conduct based, in part, on reliance on the PDR.

Gatoo v Cooper, 201 AD2d 455 (2d Dept 1994) “Nor do we find any error in the court's charge regarding D doctor's prescription of a dosage of Thorazine in excess of the dosage recommended by its manufacturer in the Physician's Desk Reference (hereinafter PDR). The court properly instructed the jurors that the administration of a dosage of medication in excess of the PDR's recommendation constitutes evidence of a deviation from accepted medical standards, but that it was for them to determine, based upon the circumstances of this case, whether D doctor acted reasonably in prescribing the higher dosage.”

Sheridan v Bieniewicz, 7 AD3d 508 (2d Dept 2004) Are the evidentiary rules regarding referencing medical literature any different on a summary judgment affidavit? Consider the following passage:

"Moreover, without any supporting documentation or references to any medical literature, plaintiff’s expert opined that ‘a causal connection can be drawn between Bieniewicz's irrigation of plaintiff 's abdominal cavity during the 1995 surgical procedure and the subsequently diagnosed damage to plaintiff 's reproductive system.’ General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment."

Gant v Novello, 302 AD2d 690 (3d Dept 2003) At a hearing before the State Board for Professional Medical Conduct, the ALJ excluded from evidence a book on alternative medicine authored by petitioning physician, noting that “(i)t has long been the rule that statements in medical books, 163

©Doctors & Their Records at Trial Benedene Cannata, 2015 even if considered authoritative, are not admissible in evidence as proof of the facts or opinions contained therein.”

Shane MM v Family and Children Services, 280 AD2d 699 (3d Dept 2001) While the respondent's psychiatrist was on the stand during a custody hearing, a text entitled “Diagnostic and Statistical Manual, Fourth Edition” was admitted into evidence. The Family Court admitted the text with the caveat that it would rely only on portions that dealt with the characteristics of an antisocial personality (the subject of the psychiatrist's testimony). Although the Third Department noted that medical texts are generally inadmissible as substantive evidence, it found no error. Family Court received the text only to “summarize and clarify the psychiatrist's testimony.” Moreover, the admission was harmless, as the portion admitted contained material that had already been independently elicited on direct examination.

Serrano v Rajamani, 6 AD3d 1191 (4th Dept 2004) This is not a trial testimony case, but is nonetheless pertinent. In a medical malpractice case, a defendant physician obtained and provided to his attorney certain medical articles for use in the lawsuit. The court held these articles were privileged and D had not waived any privilege because he didn’t review them in preparation for his deposition.

Sullivan v DRA Imaging, P.C., 34 AD3d 371 (1st Dept 2006) While D’s neurologist's reference to certain findings in an unproduced 1991 paper by the American Academy of Neurology was impermissible hearsay that should not have been disallowed, the error was rendered harmless by the neurologist's testimony, on cross-examination, that the paper was “out-of-date” and under reconsideration by the Academy. The doctor’s opinion as to P’s brain injury was based predominantly on his own examination and testing. He referred to the 1991 paper to explain why he, unlike P’s neurological expert, didn’t use a PET scan study to evaluate P.

Cummings v Fondak, 122 M 2d 913 (App Term, 1st Dept 1983) It was error to allow five articles from medical journals into evidence in a medical malpractice case. The articles were inadmissible hearsay, despite P’s claim that they hadn’t been offered to prove the truth of the statements contained therein. No proper foundation was laid and jury was never instructed that they were to in any sense limit scope of their consideration of articles.

Reilly v Ninia, 81 AD3d 913 (2d Dept 2011) The trial court correctly prohibited P from attempting to impeach the hospital's expert with a medical journal article that the expert had not accepted as authoritative.

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Saccone v Gross, 84 AD3d 1208 (2d Dept 2011) P was properly precluded from offering the PDR into evidence because it was inadmissible hearsay.

Use of medical literature when Plaintiff calls Defendant Doctor as his witness

Ithier v Solomon, 59 AD2d 935 (2d Dept 1977) At deposition (as, and assumedly, at a trial) questions as to whether the D physician: (a) recognized any books, authorities or works as authoritative or standard in the treatment of a particular disease; (b) what books D considered authoritative concerning the disease; and (c) what books doctor had studied in medical school or thereafter dealing with the disease were too broad, and did not require answers.

Ciaccio v Housman, 97 Misc 2d 367 (Sup Ct Queens County 1978, Leviss, J.) During a medical malpractice trial, P called defendant doctor as his witness, and apparently attempted to utilize medical literature during the direct examination. This was not allowed.

“Plaintiff's attorney cannot do by indirection what he is prohibited from doing directly, that is, to use a medical text to show a departure from accepted practices by D physician. If the medical text cannot be used as direct evidence of such a departure, it cannot be used to show such a departure by using the direct examination as cross-examination and then proceed to impeach the credibility of the adverse party doctor.”

Winiarski v Harris, 78 AD3d 1556 (4th Dept 2010) The trial court shouldn’t have permitted P's counsel to attempt to impeach the doctor D (whom P had called as a witness) by reading into the record a passage from an unidentified medical treatise during P's direct examination of D. “Although opinion in a publication which an expert deems authoritative may be used to impeach an expert on cross-examination ..., the introduction of such testimony on direct examination constitutes impermissible hearsay” “Further, even considering that, as an adverse party, the direct examination of defendant by plaintiffs' counsel could and, in fact did, ‘assume the nature of cross-examination’… here defendant never accepted the medical treatise as authoritative.”

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Golson v Addei, 216 AD2d 268 (2d Dept 1995) The trial court erred in permitting P’s counsel to impeach the credibility of D 's expert by referring to the Physician's Desk Reference -- which was not conceded to be authoritative by the witness. However, the error was harmless.

Watkins v Labiak, 6 AD3d 423 (2d Dept 2004) On cross-examination, P’s expert accepted the authoritativeness of a book edited by Dr. John Martin and acknowledged that he consulted a particular chapter in the book authored by Dr. Martin in formulating his opinion. D cross-examined the expert with passages that the attorney erroneously indicated were taken from the same book and chapter.

"We agree with plaintiffs that the respondent improperly used hearsay statements which the expert did not accept as authoritative. Under the circumstances of this case, the improper cross-examination was unduly prejudicial. The testimony involved the key issue of causation, and it unfairly suggested to the jury that the expert's opinion was contrary to that of the author of a book he considered authoritative."

The result was a new trial.

People v Rose, 41 AD3d 742 (2d Dept 2007) On cross-examination, a medical examiner accepted several journal articles as authoritative. However, County Court properly precluded use of these articles to impeach. On cross-examination, an expert may be confronted with a passage from a treatise, book, or article that contradicts an opinion the expert previously expressed on the stand, if the expert has accepted the material as authoritative. Here D failed to show that the content of the articles contradicted the expert's direct testimony.

Lenzini v Kessler, 48 AD3d 220 (1st Dept 2008) Although a scientific text is inadmissible as hearsay when offered for its truth or to establish a standard of care, it may be introduced to cross-examine an expert witness where it has been demonstrated that the work is the type of material commonly relied upon in the profession and has been deemed authoritative by such expert (Hinlicky v Dreyfuss, 6 NY3d 636 [2006]; cf. Matter of Yazalin P., 256 AD2d 55 [1998] ). In the subject medical malpractice trial, the court didn’t improvidently exercise its discretion in authorizing the use of certain material for impeachment purposes as against Ps' expert witnesses. Ps' radiology expert was, in that regard, questioned about a medical text he had brought to court, made notes on, and clearly deemed sufficiently authoritative notwithstanding that he may not have accepted everything contained in it. 166

©Doctors & Their Records at Trial Benedene Cannata, 2015 Ps' other expert, a gynecologist, expressly recognized the reliability of the material about which he was cross-examined. Indeed, a physician may "not foreclose full cross- examination by the semantic trick of announcing that he did not find the work authoritative" where he has already relied upon the text and testified that "he agreed with much of it" (Spiegel v Levy, 201 AD2d 378, 379 [1994], lv denied 83 NY2d 758 [1994]).

Hinlicky v Dreyfuss, 18 AD3d 18 (3d Dept 2005) aff’d 6 NY3d 636 (2006) P claimed that surgery on the decedent’s carotid artery the surgery shouldn’t have been performed without a cardiac evaluation. D anesthesiologist opined that decedent's clinical predictors didn’t indicate the necessity for a cardiac evaluation. On cross-examination (apparently by his own attorney), he was asked whether there were any guidelines he would use to determine whether further cardiac testing was necessary. D responded that in 1996, the American College of Cardiology, in conjunction with the American Heart Association, published an article entitled "ACC/AHA Guideline Update on Perioperative Cardiovascular Evaluation for Noncardiac Surgery" which contained a flow diagram, or an algorithm, and a table, entitled "Cardiac Risk Stratification of Noncardiac Surgical Procedures." He explained that the algorithm and table are used by physicians of many specialties to evaluate a patient's preoperative need for a cardiac evaluation, that he began using them shortly after their publication, and has been ever since. Defense counsel then sought to introduce the algorithm and table into evidence, reasoning that the algorithm would be helpful to explain to the jury how D had reached his conclusion. P’s counsel objected, arguing that they were hearsay. None of the ten physicians who testified at this trial criticized the algorithm and the chart or its use. There was no dispute as to its reliability. Thus the trial court allowed the algorithm and table into evidence on the grounds that (1) they fell within the "professional reliability" exception to the hearsay rule and (2) their use by the anesthesiologist was "merely one link in the chain of which [D] relied upon to reach a conclusion.” The jury returned a defense verdict. In affirming, Third Department wrote:

“In our view, the algorithm was not being offered for the truth of the matter asserted therein, but was instead being offered to illustrate the stepwise decision-making process which [defendant] applied before proceeding with decedent's surgery.”

Citing Spensieri v Lasky, the court stated that "so long as the medical reference materials are reliable, they are admissible if used to explain a physician's decision- making process and not proffered as per se evidence of a standard of care." This holding would seem to be confined to medical malpractice case and the defendant

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©Doctors & Their Records at Trial Benedene Cannata, 2015 physician’s decision-making process – it has not been applied to a purely expert physician’s “decision-making process.”

Halls v Kiyici, 104 AD3d 502 (1st Dept 2013) Perhaps parroting language in Hinlicky, D’s counsel requested that the court allow him to introduce into evidence the Gastroenterological Association clinical guidelines as to how often to perform follow-up colonoscopies, arguing that they would support the methodology D used in treating P. The First Department held that P, upon request, was entitled to a limiting instruction to the jury that the guidelines do not set forth the standards of care with respect to diagnosis and treatment. The trial court’s failure to give such a limiting instruction (which P in Hinlicky had never requested) constituted reversible error.

Kirker v Nicolla, 256 AD2d 865 at 867 (3d Dept 1998):

“Generally, a scientific book or report must be excluded as hearsay if it is offered as proof of the facts asserted therein (see, People v Riccardi, 285 NY 21, 32 NE2d 776). A passage from such a book or report, however, may be introduced if done so on cross-examination of an expert for the purposes of impeaching an expert (see, e.g., Fridovich v Meinhardt, 247 AD2d 791, 792; see also, Mark v Colgate Univ., 53 AD2d 884, 886). Although the expert need not admit having read the book or report, a proper foundation will not exist for such an examination unless the expert concedes the authoritativeness of such book or report (see, Mark v Colgate Univ., supra, at 886).”

Use of medical literature on redirect examination

Chabica v Schneider, 213 AD2d 579 (2d Dept 1995) During cross-examination, P’s counsel questioned D doctor as to certain assertions in a medical article written by an admitted authority in the field of intraocular injections. On redirect, the defense counsel tried to question D about the same article, but the trial court wouldn’t let him. The scope of redirect examination is generally left to the sound discretion of the trial court. However, the court here improvidently exercised its discretion when it barred defense counsel from using the article on redirect examination. Where only a part of a statement is drawn out on cross-examination, the other parts may be introduced on redirect examination for the purpose of explaining or clarifying that statement.

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Dunn v Moss, 193 AD2d 983 (3d Dept 1993) In a medical malpractice case:

“We likewise discern no error in the exclusion of a chart prepared by defendant delineating the particulars of the successful postoperative course of 253 of defendant's other patients who had undergone this surgical procedure and a videotape outlining the particulars of the ‘mini- trauma cholecystectomy.’ The information contained in both these evidentiary submissions, inasmuch as it does not speak to the issue of plaintiff's surgery, properly was excluded on grounds of irrelevancy and potential for prejudice.”

Casiero v Stamer, 308 AD2d 499 (2d Dept 2003) D performed arthroscopic surgery to reconstruct P’s anterior cruciate ligament, which she had injured in athletic activities. P produced her subsequent treating physician as an expert. He testified to D’s departures from the accepted medical practice, as well as causation and permanency. D was permitted to testified that the arthritis P developed post-operatively was a result of recurrent trauma during her athletic pursuits and not due to his surgery. He testified, over objection, that this commonly happened to many athletes, and then went on to name many famous athletes whom he had not treated (Jerry Rice, Picabo Street, Mickey Mantle, Joe Namath, Kirk Gibson, and Bo Jackson, who had developed post- traumatic arthritis after sustaining similar injuries. The jury found D departed from accepted medical practices, but failed to find causation. P was granted a new trial, as D's testimony as to the causation of arthritis in other athletes constituted inadmissible hearsay. (See also Brown v Speaker, 66 AD3d 422 [1st Dept 2009] (infra) in which the trial court struck D’s counsel’s reference to Tiger Woods’s level of myopia.)

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1st Dept

Alonso v Powers, 220 AD2d 311 (1st Dept 1995) “The cross examination of plaintiff’s expert regarding his suspensions from the practice of medicine was limited by the court, and to the extent such questioning was allowed, it did not constitute an improvident exercise of discretion.”

Frank v McCutchen, 28 AD3d 470 (1st Dept 2006) A physicians' affidavits submitted on P’s behalf in a prior litigation apparently asserted facts that were at variance with her trial testimony. These affidavits were properly introduced as adopted admissions. The trial court properly gave a missing witness charge as to one of the physicians. That physician’s testimony would have been at variance with, and not cumulative to that of the testifying treating physician, and also would have provided material evidence regarding P pre-existing condition.

Jacobs v Madison Plastic Surgery, P.C., 106 AD3d 530 (1st Dept 2013)

“The trial court did not commit reversible error in allowing into evidence testimony concerning plaintiff's expert's prior medical malpractice actions against her. This evidence was at most harmless error, particularly since the same testimony was elicited from defendant's expert.”

Delgado v Murray, 115 AD3d 417(1st Dept 2014) No abuse of discretion to preclude “evidence of plaintiff's expert's prior censure, by a private organization, for providing false testimony. Defendants failed to establish that the censure, for conduct which the expert denied, had sufficient evidentiary value and ‘some tendency to show moral turpitude to be relevant on the credibility issue.’”

2d Dept

Chabica v Schneider, 213 AD2d 579 (2d Dept 1995) The trial court improperly refused to allow defense counsel to impeach the credibility of P’s expert witness through use of his prior testimony at the pre-trial hearing to determine whether P’s expert could render an opinion as to the cause of P’s vision loss.

Valdez v Sharaby, 258 AD2d 458 (2d Dept 1999) “The purpose of a subpoena duces tecum is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial 170

©Doctors & Their Records at Trial Benedene Cannata, 2015 proceeding…. Here, since the subpoenas duces tecum at issue sought records simply for the purpose of gaining information to impeach the general credibility of the appellants' examining physicians, the subpoenas should have been quashed.”

Shinder v Altorki, 309 AD3d 799 (2d Dept 2003) The trial court properly permitted cross-examination of P’s expert as to the circumstances under which he had left the employment of D hospital. The questioning was narrowly tailored to the issue of the witness's credibility and his potential bias or hostility toward the hospital.

Castillo v 62-25 30th Ave. Realty, 74 AD3d 1116 (2d Dept 2010) The trial court shouldn’t have precluded D from questioning P’s treating orthopedist about the factual allegations leading to the suspension of his medical license, since this was a topic that had bearing on his credibility.

Reilly v Ninia, 81 AD3d 913 (2d Dept 2011) The trial court providently exercised its discretion in permitting P to use one excerpt from the deposition transcript of the labor and delivery nurse, but in precluding the use of an additional excerpt in cross examining the hospital's obstetrical expert, as P could and should have elicited testimony concerning the issue addressed by the precluded excerpt during the direct examination of P s' obstetrical expert.

4th Dept

McClain v Lockport Memorial Hospital, 236 AD2d 864 (4th Dept 1997) lv den 89 NY2d 817 (1998) D was properly permitted to impeach P’s expert with evidence that he had testified in over 100 cases.

Goff v Paul, 8 AD3d 971 (4th Dept 2004) D physician had a nasty history, including suspension of his privileges, a peer- reviewed study critical of his work, and a prior alcohol dependency. At trial, P didn’t call D in his case in chief. Instead, he attempted to cross-examine D on his prior bad acts following defense counsel's direct examination. P’s counsel also attempted to elicit opinions from D on the standards of medical care. The trial court refused to permit P’s counsel to do so, stating that the cross-examination was beyond the scope of D's direct examination. The Fourth Department affirmed, noting the scope and extent of cross- examination are within the broad discretion of the trial court. Justice Gorski dissented, citing Gilly v City of New York, (see discussion infra) and its holding that a P in a

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©Doctors & Their Records at Trial Benedene Cannata, 2015 medical malpractice action should be permitted to examine his doctor opponent as fully and freely as other qualified witnesses.

Miller v Galler, 45 AD3d 1325 (4th Dept 2007) The trial court properly refused to allow P to impeach D physician’s credibility on direct examination by questioning him as to a prior criminal conviction.

Diel v Bryan, 71 AD3d 1439 (4th Dept 2010) P properly cross-examined D dentist with respect to her admitted theft of narcotic medications from her former employer.

Dominicci v Ford, 119 AD3d 1360 (4th Dept 2014) In this MVA case, P’s counsel subpoenaed from D’s insurance carrier (State Farm), the following information regarding the defense examining physician:

“…1099 forms or other wage statements reflecting payments made by State Farm to the examining physician for the period from 2009 through 2011, as well as bills and invoices related to the litigation received from the examining physician, his staff or business, or from the independent examination processing company.”

State Farm moved to quash the subpoena, arguing that P’s intent was to impeach the examining physician's general credibility. Plaintiff asserted that she intended to use the documents to cross-examine the examining physician with respect to his bias or interest. Held: the motion to quash was properly denied. Questions concerning the bias, motive or interest of a witness are relevant and should be “freely permitted and answered” and P was entitled to materials that will assist her in preparing such questions. Compare this case with the Second Department’s 1999 decision, Valdez v Sharaby, supra.

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The first cases in this section provide the rules. The blurbs that follow are examples of its application.

DeVito v Feliciano, 22 NY3d 159 (2013) “We hold that when a missing witness charge is requested in a civil case, the uncalled witness's testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the witness. It may not be considered cumulative simply because it would repeat or be consistent with an opposing party's evidence.”

Chandler v Flynn, 111 AD2d 300 (2d Dept 1985) This is an old case but it’s still cited. It involved a motor-vehicle accident in Florida involving a car in which four New York residents who were passengers. The trial court erred in refusing to give a missing a witness charge. The Second Department explains the rule:

“It is well established that such a charge should be given where the witness is under plaintiff's control and is in a position to give substantial, not merely cumulative, evidence (see Oswald v Heaney, 70 AD2d 653; People v Moore, 17 AD2d 57). "Control" is used in a very broad sense and includes a witness under the influence of a party as well as one under a party's employment or management (see Hayden v New York Ry. Co., 233 NY 34, 134 NE 826; People v Douglas, 54 AD2d 515) or one whom it "may be naturally inferred (is) of good will to the party, such as * * * his physician" (Reehil v Fraas, 129 App Div 563, 566, rev'd on other grounds 197 NY 64, 90 NE. 340; see also Mashley v Kerr, 47 NY2d 892 393 NE2d 471). Nevertheless, "former treating physicians, like former employees, may be neither under the control of the party nor willing to provide testimony favorable to the patient who left them to go to other doctors" (Oswald v Heaney, supra, 70 AD2d at 654; see also Pagan v Ramirez, 80 AD2d 848). The burden is on the party opposing the inference to show that the witness is not available or under his "control" (see Mashley v Kerr, supra; Grun v Sportsman, Inc., 58 AD2d 802; Richardson, Evidence 92 [Prince--10th ed.]).

In this case, P’s physician would have given important evidence. But P never established that he left the doctor’s care to go to another physician, that the doctor was not subject to subpoena, or “that there were any circumstances which would create the type of hostility or ill will which would justify the failure to call him.”

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Dayanim v Unis, 171 AD2d 579 (1st Dept 1991) “It is well settled that a missing witness charge is warranted for the failure to call a treating physician as a witness at trial, unless the party opposing the inference shows that the witness is either unavailable, not under his control, or that the witnesses' testimony would be cumulative.”

Rivera v. Port Auth. of New York & New Jersey, 2015 WL 1471600 (1st Dept 2015) D knew, from P’s witness list, that P would only be calling one of her two treating physicians. At the charge conference, held before P formally rested, D requested a missing witness charge for the other physician. Held, the request was made too late. And besides, the testimony would’ve been cumulative.

Gagnon v St. Clare's Hosp., 58 AD3d 960 (3d Dept 2009) In this medical malpractice case involving a perforation of the small bowel during surgery, it was reversible error for the trial court to refuse to issue a missing witness charge as to the assistant surgeon.

Missing Witness Charge Not Warranted

Byczek v City of New York Dept of Parks, 81 AD2d 823 (2d Dept 1981) It was reversible error for the trial court to issue a missing witness charge as to P’s treating physician. When P’s counsel first contacted the doctor, he was on vacation. When the doctor was contacted during trial, he was busy with surgery. When counsel asked for a continuance, it was denied.

Klombers v Lefkowitz, 131 AD2d 815 (2d Dept 1987) No missing witness charge as to P’s former physician, where it wasn’t shown that he was within P’s control.

Kasman v Flushing Hosp. and Medical Center, 224 AD2d 590 (2d Dept 1996) D offered into evidence the report of a doctor who had examined P once, 13 years earlier. D later succeeded in getting a missing charge as to this doctor. The missing witness charge was inappropriate. P’s counsel indicated that his efforts to locate the doctor had been unsuccessful.

Bonner v Lee , 255 AD2d 1005 (4th Dept 1998) P’s failure to call one of her treating physicians and two radiologists who prepared MRI reports didn’t warrant a missing witness charge. Although those witnesses

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©Doctors & Their Records at Trial Benedene Cannata, 2015 possessed information material to the issue at hand, the testimony of P’s primary treating physician was sufficient to render the other doctors’ testimony unnecessary.

Duncan v Mount St. Mary's Hosp. of Niagara Falls 272 AD2d 862 (4th Dept 2000) The court properly denied P’s request for a missing witness instruction with respect to Ds' failure to call an expert. The testimony of that expert would’ve been cumulative to that of another medical expert witness who testified for Ds. Moreover, it was not an abuse of discretion to preclude P’s counsel from commenting in summation about Ds' failure to call the witness.

Lagrasta v Ettayyim, 5 AD3d 737 (2d Dept 2004) The trial court properly declined to give a missing witness charge with respect to two of D 's doctors who examined P after surgery. P had failed to establish that these doctors were under D's sole control and “would have been expected to provide material noncumulative testimony favorable to defense.”

Holbrook v Pruiksma, 43 AD3d 603 (3d Dept 2007) It was not an abuse of discretion for the trial court to deny P’s request for a missing witness charge as to D’s doctor, who examined P 2-1/2 weeks before trial but never issued a report. Neither party, particularly D, had any idea about the substance of this doctor’s findings. Thus P couldn’t meet her burden of demonstrating that the testimony would be expected to be favorable to D. Also, D “otherwise demonstrate(d) that the charge would not be appropriate” given the proof that defense counsel never received a copy of the physician’s report.

Cuevas v St. Luke's Roosevelt Hosp. Ctr., 95 AD3d 580 (1st Dept 2012) The trial court properly refused to issue a missing witness charge concerning one of P’s doctors. Since the physician's notes and records had been entered into evidence by stipulation, the testimony would’ve been cumulative.

Peat v Fordham Hill Owners Corp., 110 AD3d 643 (1st Dept 2013) lv to appeal denied, 23 NY3d 903 (2014) Request for a missing witness charge as to P’s treating physicians was properly denied. P did call his psychiatrist and a medical expert who testified as to his future medical needs, and P’s complete medical records were submitted and discussed by P's expert. The testimony of other treating physicians would’ve been cumulative.

Missing Witness Charge Warranted

Placakis v City of New York, 289 AD2d 551 (2d Dept 2001) 175

©Doctors & Their Records at Trial Benedene Cannata, 2015 It was improper to deny the P's request for a missing witness charge as to D’s examining physician.

O'Brien v Barretta, 1 AD 3d 330 (2d Dept 2003) The trial court erred in failing to give a missing witness charge as to treating surgeon. The dissenting judge felt there was no error, as the surgeon’s operative report and post-operative treatment reports were in evidence and showed that the surgery had been successful and P no longer suffered back pain.

Brooks v Judlau Contracting, Inc., 39 AD3d 447 (2d Dept 2007) D’s examining physician was waiting outside the courtroom, but defense counsel chose not to call him. P was entitled to a missing witness charge. Under this scenario, the inference generally arises that the physician's testimony would be unfavorable to D. D could defeat this inference only by demonstrating that the testimony would be cumulative, that the witnesses was unavailable or not under D’s control, or that the witness would have addressed matters not in dispute.

Hanlon v Campisi, 49 AD3d 603 (2d Dept 2008) D’s examining physician produced a report stating that the accident was "the causative factor” of P’s right shoulder complaints. At trial, D produced only a radiologist, who testified that P’s shoulder condition was degenerative. The trial court denied P’s prompt request for a missing witness charge. This was error. When a doctor who examines a P on D's behalf doesn’t testify, an inference generally arises that the testimony would be unfavorable to D. D may only defeat this reference by demonstrating that the testimony would be cumulative or that the witness was unavailable or not under D’s control. Here D was unable to make that showing.

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Sanchez v MABSTOA, 170 AD2d 402 (1st Dept 1991) Only one of the reasons for granting P a new trial in this case was defense counsel's disparaging P’s medical expert. In summation, she referred to him as "Here comes Howie" and misstated that he had had his privileges at New York Hospital revoked.

Clarke v New York City Transit Authority, 174 AD2d 268 (1st Dept 1992) “In view of the fact that we have consistently held that it is error for trial counsel to accuse medical experts, without supporting evidence, of being willing to testify falsely for a fee …, we find that plaintiffs' trial counsel erred, when he stated that Dr. Alden, a medical expert, who testified on behalf of the defendant, ‘is nothing but a paid expert who will say anything whatsoever without regard to what is right, without regard to what is truthful.’"

Peterson v Zuercher, 198 AD2d 797 (4th Dept 1993) D waited until the middle of trial to tell P they were going to call the orthopedic surgeon who had examined P for the third-party defendant physician. Trial court properly precluded D from doing so, as it would have deprived P of an adequate opportunity to prepare for cross-examination. P’s counsel then took unfair advantage of the preclusion. During the cross, counsel impeached the physician by bringing out his failure to consider the very same report that counsel had succeeded in getting precluded. This strategy, along with other misconduct, entitled D to a new trial on certain damages.

Classen v Ashkinazy, 258 AD2d 863 (3d Dept 1999) During summation, P’s counsel exhorted the jury to compare D dentist's x-rays with P’s expert's x-rays, suggesting that D’s x-rays had been altered. The court held that this "pushed the boundaries of fair comment too far" because there wasn't enough evidence in the record to support this veiled accusation. The result was a new trial.

Grasso v Koslowe, 38 AD3d 599 (2d Dept 2007) affg. 2006 NY Slip Op 50725(U) (Sup Ct Richmond County, Minardo, J.) The trial court properly set aside a $2 million verdict on the ground that P’s counsel’s summation was prejudicial. Referring to the defense experts, counsel described the first as a “pro” (implying a professional and buyable witness), saying “you get your monies’ worth out of that guy” who “had to make up a story.” He described the other medical witness as being in P’s “pocket.” He also described them as “two honchos,” he called them, who “make up” whatever D needs made up. 177

Maraviglia v Lokshina, 92 AD3d 924 (2d Dept 2012) This case is an example of the kind of bad behavior by counsel that results in new trial. Here, D’s counsel: • repeatedly denigrated the medical background of P's treating physician; • made inflammatory remarks, including commenting during summation that P’s treating physician and P were “working the system;” • remarked that P’s treating physician testified “at an enormous amount of Workers [Compensation] proceedings” and was the “go-to” doctor in Suffolk County for patients who wished to stop working; • improperly vouched for the credibility of D's expert by thanking “God there are people like [him] who are the stop gap.” • referred to the medical center where P’s expert anesthesiologist worked as a “parking lot”; • persistently questioned P’s' expert about an investigation by the Department of Health of “anesthetic mishaps” despite the expert's testimony that the investigation did not involve his practice, and D’s total lack of evidence to the contrary; • commented in summation that P’s expert was “sensitive” about this topic, called him “out of control”; • in questioning P’s expert about a malpractice case against him, counsel remarked that the expert had been “afraid to take the witness stand in that case.”

Bertram v New York Presbyterian Hospital, 41 Misc 3d 1236 (A) (Sup Ct, New York County, 2013, Billings, J) This is an excellent decision that discusses what types of behavior should not be engaged in at a trial and the decisional law on the subject. The defense attorney behaved abominably in this medical malpractice case, attacking P, P’s counsel, and P’s experts. For example, asserting without basis that P’s counsel had contacted multiple experts, engaging in mockery and name-calling, and “leap[ing] beyond the trial evidence into unproved speculation and innuendo.” Unfortunately, P’s counsel didn’t lodge the necessary objections or ask for a mistrial. Given that the jury could have reached the verdict upon a reasonable view of the evidence, the defense verdict was sustained.

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Matter of Siegel v County of Monroe, 207 AD2d 959 (4th Dept 1994) If a medical or hospital record has been received into evidence, counsel may read from it during summation.

Kasman v Flushing Hosp. and Medical Center, 224 AD2d 590 (2d Dept 1996) At trial, certain of P’s medical insurance records were received into evidence. During P’s summation, the trial court prevented counsel from commenting on these records. It was prejudicial error to restrict P s' counsel from commenting within the four corners of the evidence during summation.

Morse v Columbo, 31 AD3d 916 (3d Dept 2006) A physician's affidavit was inadmissible at trial: it was made more than 2 years after the medical appointment, and the matter recorded wasn’t fresh. Also the physician testified that the affidavit didn’t accurately represent her recollection when she signed it.

Roseingrave v Massapequa General Hosp., 298 AD2d 377 (2d Dept 2002)

The trial court wouldn’t allow P's counsel in summation to show the jury X-rays that had been admitted into evidence. It only allowed counsel to comment on them. This was error, the court noting that: “It is well settled that counsel during summation may comment ‘upon every pertinent matter of fact bearing upon the questions the jury have to decide.’” “The ruling of the trial court diminished counsel's efforts to argue the extent of the plaintiff's damages.”

Schou v Whitely, 9 AD3d 706 (3d Dept 2004) The trial court didn’t err in refusing to allow P to display one of his scars to the jury. P had displayed one two-inch scar on his neck and a six-inch scar on his lower back. P’s expert explained that the neck scar resulted from the fusion of the cervical vertebrae, and that lower back scar resulted from the lumbar fusion. P s' expert also explained that P had an additional two-inch scar on his hip from the lumbar fusion. The trial court acted within its discretion in precluding the publication of that third scar because P would’ve had to partially remove his pants to do so. Although this scar was relevant to the issue of disfigurement, no prejudice resulted from this ruling in light of the expert testimony describing its size and its location. By the way, the jury found no significant disfigurement in this case.

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©Doctors & Their Records at Trial Benedene Cannata, 2015 Gardner v Wider, 32 AD3d 728 (4th Dept 2006) This case was based on a claimed lack of informed consent. During discovery, D testified at a deposition that he did discuss all the risks of plastic surgery with P, including the risk of hair loss resulting from her facelift. The case went to trial, and P called D doctor to the stand. The trial court however precluded the testimony. The Fourth Department held this ruling was consistent with McDermott v Manhattan Eye, Ear and Throat Corp. 15 NY2d 40 (1964) as nothing in D’s deposition testimony suggested that he would testify to as to a lack of informed consent. “To hold otherwise would require that we accept the entirely unlikely possibility of a Perry Mason moment where D under cross-examination repudiates his entire deposition testimony. We decline to indulge in such speculation.”

Duncan v Mount St. Mary's Hosp. of Niagara Falls 272 AD2d 862 (4th Dept 2000) It was error (albeit harmless in this case) to preclude P from reading portions of D physician's deposition testimony at trial.

Bergamaschi v Gargano, 293 AD2d 695 (2d Dept 2002) P alleged that her herniated disc resulted from the subject auto accident. But D argued that it was the result of degenerative changes, and sought to call both a neurologist and an orthopedic surgeon to prove it. The Second Department agreed with D that the trial court's refusal to allow her to call both specialists prejudiced her ability to present a full defense. Acknowledging the party’s right to present its best case, the court stated:

“Notably, there was a sharp factual dispute as to whether the injured plaintiff's herniated discs were caused by the subject automobile accident, or where the results of degenerative changes from a prior accident. Moreover, the voir dire of the neurologist which was conducted prior to the court’s ruling indicated that while physicians in the fields of neurology and orthopedics work closely together, a neurologist, who diagnoses and treats nerve disorders such as disc injuries, will sometimes need to rely upon the expertise of an orthopedist. As an example, the neurologist explained that if he found that a patient was suffering from a disc injury, he would refer the patients to an orthopedic surgeon to determine whether a fusion was necessary. Considering the fact that the key issue in this case was whether the herniated discs in the injured plaintiff's cervical spine were the result of the subject accident, the court should not have entirely precluded the appellant from presenting the testimony of a second physician with a different area of medical expertise.” 180

22 NYCRR 202.17 ...... 45, 47, 49, 51, 55, 84, 88, 94, 95, 122, 123, 124, 127, 154, 155 Abato v Beller, 122 AD3d 554 (2d Dept 2014) ...... 74 Abbas v Cole, 7 AD3d 649 (2d Dept 2004) ...... 18 Acunto v Conklin, 260 AD2d 787 (3d Dept 1999) ...... 134 Adair v Tully-Kuzman, 91 AD3d 1228 (3d Dept 2012) ...... 141 Adams v Romero, 227 AD2d 292 (1st Dept 1996) ...... 32 Adkins v Queens Van-Plan, Inc., 293 AD2d 503 (2d Dept 2002) ...... 15, 102, 148 Aguirre v Long Island Rail Road, 286 AD2d 658 (2d Dept 2001) ...... 32 Albrecht v Area Bus. Corp., 249 AD2d 253 (2d Dept 1998) ...... 27 Alonso v Powers, 220 AD2d 311 (1st Dept 1995) ...... 170 Amann v Edmonds, 306 AD2d 362 (2d Dept 2003) ...... 22 Anderson v Dainack, 39 AD3d 1065 (2d Dept 2007) ...... 90 Anderson v House of Good Samaritan Hospital, 44 AD3d 135 (4th Dept 2007) ...... 19 Andrew v Hurh, 34 AD3d 1331 (4th Dept 2006) ...... 89 Antoniato v Long Island Jewish Medical Center, 58 AD3d 652 (2d Dept 2009) ...... 139 Apikoglu v Leitman, 92 AD3d 623 (2d Dept 2012) ...... 129 Arguinzoni v Parkway Hosp., 14 AD3d 633 (2d Dept 2005) ...... 58 Ariola v Long, 197 AD2d 605 (2d Dept 1993) ...... 107 Arons v Jutkowitz, 9 NY36 393 (2007) ...... 74 Astrel v Yarborough, 31 AD3d 356 (2d Dept 2006) ...... 138 Baglio v St. John's Queens Hosp. 303 AD2d 341(2d Dept 2003) ...... 36 Bailey v Owens, 3 Misc 3d 1101 (A) (Sup Ct, New York County, 2004, Carey, J.) ...... 82 Bako v DeCaro, 2002 WL 1610734, 2002 N.Y. Slip Op. 50271U) (Civ Ct Richmond County 2002 Straniere, J.) ...... 153 Balogh v H.R.B. Caterers, 88 AD2d 136, 141 (2d Dept 1982) ...... 65 Balsz v A and T Bus Co., 252 AD2d 458 (1st Dept 1998) ...... 145 Banister v Marquis, 87 AD3d 1046 (2d Dept 2011) ...... 19, 62, 110 Banks v City of New York, 92 AD3d 591 (1st Dept 2012) ...... 49, 123 Barzaghi v Maislin Transport, 115 AD2d 679 (2d Dept 1985) ...... 21 Batts v Rutrick, 298 AD2d 417 (2d Dept 2002) ...... 13 Beard v Brunswick Hospital, 220 AD2d 550 (2d Dept 1995) ...... 59 Beck v Albany Medical Ctr. Hosp., 191 AD2d 854 (3d Dept 1993) ...... 18, 87 Bednarz v Inn on Bridges St., Inc., 68 AD3d 1411 (3d Dept 2009) ...... 141 Beecham v New York City Transit Authority, 54 AD3d 594 (1st Dept 2008) ...... 26 Behan v Data Probe International, Inc., 213 AD2d 439 (2d Dept 1995) ...... 156 Beizer v Schwartz, 15 AD3d 433 (2d Dept 2005) ...... 107 Benavides v City of New York, 115 AD3d 518 (1st Dept 2014) ...... 26 Benfer v Sachs, 3 AD3d 781 (3d Dept 2004) ...... 107 Beresford v Waheed, 302 AD2d 342 (2d Dept 2003) ...... 148 Bergamaschi v Gargano, 293 AD2d 695 (2d Dept 2002) ...... 180 Berrios v TEG Management Corp., 35 AD3d 775 (2d Dept 2006) ...... 27 Berson v Chowdhury, 251 AD2d 278 (2d Dept 1998) ...... 50 Bertram v New York Presbyterian Hospital, 41 Misc 3d 1236 (A) (Sup Ct, New York County, 2013, Billings, J) ...... 178 Bevilacqua v Gilbert, 143 AD2d 213 (2d Dept 1988) ...... 114 Bickom v Bierwagen, 48 AD3d 1247 (4th Dept 2008) ...... 108 Biesiada v Suresh, 309 AD2d 1245 (4th Dept 2003) ...... 120 Bjorke v Rubenstein, 38 AD3d 580 (2d Dept 2007) ...... 37 Blanchard v Lifegear, 45 AD3d 1257 (4th Dept 2007) ...... 132 181

©Doctors & Their Records at Trial Benedene Cannata, 2015 Blome v Presti Auto Sales, 43 AD2d 1002 (3d Dept 1974) ...... 112 Blunt v Northern Oneida County Landfill, 145 AD2d 913 (4th Dept 1988) ...... 65 Bodensiek v Schwartz, 292 AD2d 411 (2d Dept 2002) ...... 107 Bonner v Lee , 255 AD2d 1005 (4th Dept 1998) ...... 88, 174 Borawski v Huang, 34 AD3d 409 (2d Dept 2006) ...... 107 Borden v Brady, 92 AD2d 983 (3d Dept 1983) ...... 144, 150 Boucheron v Tilley, 87 AD2d 983 (4th Dept 1982) ...... 28 Brandes v North Shore University Hosp., 22 AD3d 779 (2d Dept 2005)...... 72 Breen v Laric Entertainment Corp., 2 AD3d 298 (1st Dept 2003) ...... 83, 155 Bronstein-Becher v Becher, 25 AD3d 796 (2d Dept 2006) ...... 13 Brooks v Judlau Contracting, Inc., 39 AD3d 447 (2d Dept 2007) ...... 176 Broun v Equitable Life Assur. Socy. of U.S., 69 NY2d 675 (1986) ...... 92 Browder v NYCH&HC, 37 AD2d 375 (1st Dept 2007) ...... 26 Brown v County of Albany, 271 AD2d 819 (3d Dept 2000) ...... 157 Brown v Reinauer Transp. Companies, LLC, 67 AD3d 106 (3d Dept 2009) ...... 141, 158 Brown v Speaker, 66 AD3d 422 (1st Dept 2009) ...... 161 Bruce-Bishop Jafar , 302 AD2d 345 (2d Dept 2003) ...... 6, 138 Brusco v Davis-Klages, 302 AD2d 674 (3d Dept 2003) ...... 67 Brzozowy v Elrac, Inc., 39 AD3d 451 (2d Dept 2007) ...... 134 Bunting v Selesnick, 300 AD2d 26 (1st Dept 2002) ...... 126, 155 Burns v McCabe, 17 AD3d 1111 (4th Dept 2005) ...... 52 Butler v Grimes, 40 AD3d 569 (2d Dept 2007) ...... 87 Byczek v City of New York Dept of Parks, 81 AD2d 823 (2d Dept 1981) ...... 93, 113, 174 Byrnes v Satterly, 85 AD3d 1711 (4th Dept 2011) ...... 132 Byrnes v Varlack, 17 AD3d 616 (2d Dept 2005) ...... 68 Caccioppoli v City of New York, 50 AD3d 1079 (2d Dept 2008) ...... 61 Caldwell v Cablevision Sys. Corp., 20 NY3d 365 (2013) ...... 78 Campo v Neary, 52 AD3d 1194 (4th Dept 2008) ...... 57 Carcamo v Stein, 53 AD3d 520 (2d Dept 2008) ...... 27 Carnevale v Elizabeth Wende Breast Care, LLC, 106 AD3d 1516 (4th Dept 2013) ...... 97 Carrozzo v Carrozzo, 202 AD2d 1070 (4th Dept 1994) ...... 106 Carson v Hutch Metro Ctr., LLC, 110 AD3d 468, 469 (1st Dept 2013) ...... 71 Casey v Tan, 255 AD2d 900 (4th Dept 1998) ...... 88 Casiero v Stamer, 308 AD2d 499 (2d Dept 2003) ...... 169 Cassano v Hagstrom, 5 NY2d 643 (1959) ...... 134 Castillo v Staten Island Cable, LLC, 19 M 3d 1105A) (Civ Ct, New York County 2008) ...... 35 Castillo v 62-25 30th Ave. Realty, 74 AD3d 1116 (2d Dept 2010) ...... 171 Chabica v Schneider, 213 AD2d 579 (2d Dept 1995) ...... 168, 170 Chandler v Flynn, 111 AD2d 300 (2d Dept 1985) ...... 173 Chapman v State, 227 AD2d 867 (3d Dept 1996) ...... 134 Chase v OHM, LLC, 75 AD3d 1031 (3d Dept 2010) ...... 51, 97 Chervonskaya v Bentley, 55 AD3d 650 (2d Dept 2008) ...... 34 Christopher v Dokko, 55 AD3d 1367 (4th Dept 2008) ...... 57, 125 Ciaccio v Housman, 97 Misc 2d 367 (Sup Ct Queens County 1978, Leviss, J.) ...... 165 Ciocca v Park, 21 AD3d 671 (3d Dept 2005) affirmed 5 NY3d 835 (2005) ...... 150 Cirello v Virgues, 156 AD2d 417 (2d Dept 1989) ...... 53 Citron v Northern Duchess Hospital, 198 AD2d 618 (3d Dept 1993) ...... 130 Clarke v New York City Transit Authority, 174 AD2d 268 (1st Dept 1992) ...... 177 Classen v Ashkinazy, 258 AD2d 863 (3d Dept 1999) ...... 31, 177 Clemons v Glicksman, 25 AD3d 468 (1st Dept 2006) ...... 71 Clemons v Vanderpool, 289 AD2d 1078 (4th Dept 2001) ...... 125, 158 Clevenger v Mitnick, 38 AD3d 586 (2d Dept 2007) ...... 16, 33, 149 Coakley v Parkway Hosp., 103 AD3d 680 (2d Dept 2013) ...... 92 Cohn v Haddad, 244 AD2d 519 (2d Dept 1997) ...... 8, 12, 136 Coker v Bakkal Food, Inc., 52 AD3d 765 (2d Dept 2008) ...... 28 182

©Doctors & Their Records at Trial Benedene Cannata, 2015 Collado v Satellite Solutions & Electronics of WNY, LLC, 56 AD3d 411 (2d Dept 2008) ...... 82 Comunale ex rel. Comunale v Sealand Contractors Corp., 2 Misc 3d 672 (Sup Ct, Monroe County, 2004, Lunn, J.) ...... 53 Conde v Williams, 6 AD3d 569 (2d Dept 2004) ...... 68 Connors v Sowa, 251 AD2d 989 (4th Dept 1998) ...... 52 Cordero v Miracle Cab Corp., 51 AD3d 707 (2d Dept 2008) ...... 34 Cotter v Mercedes-Benz, 108 AD2d 173 (1st Dept 1985 ...... 20 CPLR 2306 (a) ...... 20, 43 CPLR 3117 ...... 70, 71, 72 CPLR 3122-a ...... 9, 41 CPLR 4515 ...... 110, 142 CPLR 4518 (c) ...... 12, 16, 17, 18, 29 CPLR 4532-a ...... 31, 32, 33, 44, 153 CPLR 2303-a ...... 94 CPLR 3101(d) ...... 84, 85, 87, 88, 89, 91, 92, 129, 155, 156, 157 CPLR 3101(d)(i) ...... 57 CPLR 3121 ...... 45, 74, 84, 93, 115, 155 CPLR 4518 (b) ...... 30 Crisci v Sadler, 253 AD2d 447 (2d Dept 1998) ...... 12, 96 Cromp v Ahluwalia, 43 AD3d 1389 (4th Dept 2007) ...... 142 Cross Continental Medical PC v Allstate Ins. Co., 13 Misc 3d 10 (App Term 1st Dept 2006) ...... 135 Cruz v Gustitos, 51 AD3d 963 (2d Dept 2008) ...... 91 Cuevas v Alexander's, Inc., 23 AD3d 428 (2d Dept 2005) ...... 27 Cuevas v St. Luke's Roosevelt Hosp. Ctr., 95 AD3d 580 (1st Dept 2012) ...... 175 Cummings v Fondak, 122 M 2d 913 (App Term, 1st Dept 1983) ...... 164 Cuttino v New York State Comptroller, 80 AD3d 1067 (3d Dept 2011) ...... 16 Dallarda v Broderick, 2007 NY Slip. Op. 51029U) (Sup Ct Sullivan County 2007, LaBuda, J.) ...... 143 Dalrymple v Koka, 2 AD3d 769 (2d Dept 2003) ...... 127 D'Andraia v Pesce, 103 AD3d 770 (2d Dept 2013) ...... 17, 43 Daniels v Armstrong, 42 AD3d 558 (2d Dept 2007) ...... 50 Daniels v Simon, 99 AD3d 658 (2d Dept 2012) ...... 11, 13 Davidson v Cornell, 132 NY 228 (1892) ...... 98 Davidson v Steer/Peanut Gallery, 277 AD2d 965 (4th Dept 2000) ...... 52 Dayanim v Unis, 171 AD2d 579 (1st Dept 1991) ...... 7, 174 De Hernandez v Lutheran Medical Center, 46 AD3d 517 (2d Dept 2007) ...... 105, 157 De Luca v Kameros, 130 AD2d 705 ( 2d Dept 1987) ...... 101 Deandino v New York City Transit Auth., 105 AD3d 801 (2d Dept 2013) ...... 62 DeAngelis v New York University Medical Center, 15 AD3d 185 (1st Dept 2005) ...... 8 Delgado v Murray, 115 AD3d 417(1st Dept 2014) ...... 170 DeLuca v Ju Liu, 297 AD2d 307 (2d Dept 2002) ...... 148 Demeter v Mem'l Hosp. for Cancer & Allied Diseases, 156 Misc 2d 688 (Sup Ct, New York County 1993, Sklar, J.) ...... 115 Denoyelles v Gallagher, 40 AD3d 1027 (2d Dept 2007) ...... 37 DeVito v Feliciano, 22 NY3d 159 (2013) ...... 173 Devito v Feliciano, 84 AD3d 645 (1st Dept 2011) rev'd on other grounds ...... 42 Diamantstein v Friedman, 199 AD2d 458 (2d Dept 1993) ...... 50 Diarassouba v Urban, 24 AD3d 602 (2d Dept 2005) ...... 133 Diaz v Rose, 40 AD3d 429 (1st Dept 2007) ...... 36 Diel v Bryan, 71 AD3d 1439 (4th Dept 2010) ...... 108, 172 Dilena v Irving Reisman Irrevocable Trust, 262 AD2d 256 (1st Dept 1999) ...... 49 Doe v G.J. Adams Plumbing, Inc. 8 Misc 3d 610 (Sup Ct, Oneida County, 2005, Julian, J) ...... 39 Dombrowski v Moore, 299 AD2d 949 (4th Dept 2002) ...... 131, 158 Dominicci v Ford, 119 AD3d 1360 (4th Dept 2014) ...... 172 Donoso v Motor Vehicle Accident Indemn. Corp., 118 AD3d 461 (1st Dept 2014) ...... 6 Dorato v Schlip, 130 AD2d 348 (3d Dept 1987) ...... 93 183

©Doctors & Their Records at Trial Benedene Cannata, 2015 Dowling v 257 Associates, 235 AD2d 293 (1st Dept 1997) ...... 31 Duffen v State, 245 AD2d 653 (3d Dept 1997) ...... 112 Duncan v Mount St. Mary's Hosp. of Niagara Falls 272 AD2d 862 (4th Dept 2000) ...... 175, 180 Dunn v Moss, 193 AD2d 983 (3d Dept 1993) ...... 169 Durant v Shuren, 33 AD3d 843 (2d Dept 2006) ...... 128 Dwight v New York City Transit Authority, 30 AD3d 270 (1st Dept 2006) ...... 33 Dykstra v Avalon Rest. Renovations, Inc., 60 AD3d 446 (2d Dept 2009) ...... 107 Easley v City of New York, 189 AD2d 599 (1st Dept 1993) ...... 100, 134 Eitner v 119 West 71st Street Owner Corp., 253 AD2d 641 (1st Dept 1998) ...... 21 Ellis v Emerson, 57 AD3d 1435 (4th Dept 2008) ...... 143 Elshaarawy v U-Haul Co. of Mississippi, 72 AD3d 878 (2d Dept 2010) ...... 150 Erbstein v Savasatit, 274 AD2d 445 (2d Dept 2000) ...... 107 Eremina v Scparta, 120 AD3d 616 (2d Dept 2014) ...... 35 Erena v Colavita Pasta & Olive Oil Corp., 199 AD2d 729 (3d Dept 1993) ...... 51 Erosa v Rinaldi, 270 AD2d 384 (2d Dept 2000) ...... 137 Escobar v Allen, 5 AD3d 242 (1st Dept 2004) ...... 102 Ewanciw v Atlas, 65 AD3d 1077 (2d Dept 2009) ...... 33 Fanelli v di Lorenzo, 187 AD2d 1004 (4th Dept 1992) ...... 9 Farrell v Gelwan, 30 AD3d 563 (2d Dept 2006) ...... 69, 128 Faust v McPherson, 4 M 3d 89 (App Term, 2d and 11th Jud Dists 2004) ...... 7 Feger v Goldberg, 250 AD2d 727 (2d Dept 1998) ...... 136 Feliciano v Ford Motor Credit Company, 28 AD3d 221 (1st Dept 2006) ...... 135 Ferrantello v St. Charles Hosp. & Rehabilitation Ctr., 275 AD2d 387 (2d Dept 2000) ...... 14, 137 Ferro v Lee, 48 AD3d 412 (2d Dept 2008)...... 74 Figueroa v Sliwowski, 43 AD3d 858 (2d Dept 2007) ...... 82 Finger v Brande, 306 AD2d 104 (1st Dept 2003) ...... 83, 155 Finnocchiaro v Wall Street PK-Up Services, 8 Misc 3d 133 A) (App Term 2d and 11th Jud Dists 2005 ...... 149 Fishkin v Massre, 286 AD2d 749 (2d Dept 2001) ...... 91, 157 Flaherty v American Turners New York, Inc., 291 AD2d 256 (1st Dept 2002) ...... 11 Flamio v State of New York, 132 AD2d 594 (2d Dept 1987) ...... 146 Fortunato v Murray, 101 AD3d 872, 874 (2d Dept 2012) ...... 9 Frank v McCutchen, 28 AD3d 470 (1st Dept 2006) ...... 170 Freeman v Kirkland, 184 AD2d 331 (1st Dept 1992) ...... 8, 12 Fuller v Preis, 35 NY2d 425 (1974) ...... 106 Futersak v Brinen, 265 AD2d 452 (2d Dept 1999) ...... 73 Gagliardotto v Huntington Hosp., 25 AD3d 758 (2d Dept 2006) ...... 128 Gagnon v St. Clare's Hosp., 58 AD3d 960 (3d Dept 2009) ...... 174 Galuska v Arbaiza, 106 AD2d 543 (2 Dept 1984) ...... 32 Gant v Novello, 302 AD2d 690 (3d Dept 2003) ...... 163 Gardner v Wider, 32 AD3d 728 (4th Dept 2006) ...... 180 Garritano v Garritano, 62 AD3d 657 (2d Dept 2009) ...... 7 Gaston v City of New York, 59 AD3d 281 (1st Dept 2010) ...... 136 Gatoo v Cooper, 201 AD2d 455 (2d Dept 1994) ...... 163 Gayz v Kirby, 41 AD3d 782 (2d Dept 2007) ...... 64 Geffner v North Shore University Hosp., 57 AD3d 839 (2d Dept 2008) ...... 37 Gerson v New York Women's Medical, P.C., 249 AD2d 265 (2d Dept 1998) ...... 34 Gilbert v Luvin, 286 AD2d 600 (1st Dept 2001) ...... 126 Gilleo v Elizabeth A. Horton Memorial Hospital, 196 AD2d 569 (2d Dept 1993) ...... 110 Gilly v City of New York, 69 NY2d 509 (1987) ...... 113 Ginsberg by Ginsberg v North Shore Hosp., 213 AD2d 592 (2d Dept 1995) ...... 40 Giordano v Allstarz Limousine, Ltd., 53 AD3d 470 (2d Dept 2008) ...... 82 Giordano v New Rochelle Mun. Hous. Auth., 84 AD3d 729 (2d Dept 2011) ...... 43 Giventer ex rel. Giventer v Rementeria, 181 Misc 2d 582 (Sup Ct, Richmond County, 1999, Maltese, J) ...... 119 Goff v Paul, 8 AD3d 971 (4th Dept 2004) ...... 119, 171 Goichberg v Sotudeh, 187 AD2d 700 (2d Dept 1992) ...... 66 184

©Doctors & Their Records at Trial Benedene Cannata, 2015 Goldblatt v Avis Rent A Car Sys., 223 AD2d 670 (2d Dept 1996) ...... 71 Golson v Addei, 216 AD2d 268 (2d Dept 1995) ...... 166 Graney v Ryan, 19 AD3d 1172 (4th Dept 2005) ...... 120 Grant v New York City Transit Authority, 105 AD3d 445 (1st Dept 2013) ...... 26 Grassi v Carolina Barbeque, Inc., 254 AD2d 38 (1st Dept 1998) ...... 49 Grasso v Koslowe, 38 AD3d 599 (2d Dept 2007) affg. 2006 NY Slip Op 50725U) (Sup Ct Richmond County, Minardo, J.) ...... 177 Green v William Penn Life Ins. Co. of New York, 74 AD3d 570 (1st Dept 2010) ...... 61 Greene v Robarge, 104 AD3d 1073 (3d Dept 2013) ...... 151 Gregory v Mulligan, 266 AD2d 344 (2d Dept 1999) ...... 127 Grieco v Kaleida Health, 82 AD3d 1671 (4th Dept 2011) ...... 76 Gushlaw v Roll, 290 AD2d 667 (3d Dept 2002) ...... 64 Guzman ex rel. Jones v 4030 Bronx Blvd. Associates LLC, 54 AD3d 42 (1st Dept 2008)...... 66 Guzman v Spring Cr. Towers, Inc., 63 AD3d 1105 (2d Dept 2009)...... 62 Hageman v Jacobson, 202 AD2d 160 (1st Dept 1994) ...... 58 Halls v Kiyici, 104 AD3d 502 (1st Dept 2013) ...... 168 Hambsch v New York Transit Authority, 63 NY2d 723 (1984) ...... 144 Hamer v City of New York, 106 AD3d 504 (1st Dept 2013) ...... 96, 156 Hamilton v Miller, 23 NY3d 592 (2014) ...... 47 Hammond v Welsh, 29 AD3d 518 (2d Dept 2006) ...... 96, 134 Hanlon v Campisi, 49 AD3d 603 (2d Dept 2008) ...... 176 Harper v Findling, 38 AD3d 601 (2d Dept 2007) ...... 58 Harper v Han Chang, 267 AD2d 1011 (4th Dept 1999) ...... 70 Hefte v Bellin, 137 AD2d 406 (1st Dept 1988) ...... 66 Hegler v Lowes Roosevelt Field Cinemas, Inc., 280 AD2d 645 (2d Dept 2001) ...... 58 Henry v New York City Transit Auth., 92 AD3d 460 (1st Dept 2012) ...... 112 Herrera v Matlin, 303 AD2d 198 (1st Dept 2003) ...... 35 Hessek v Roman Catholic Church of Our Lady of Lourdes in Queens Village, 80 Misc 2d 410 (Civ Ct, City of New York, Queens County, 1975) ...... 79 Hill v Sheehan, 154 AD2d 912 (4th Dept 1989) ...... 72 Hinlicky v Dreyfuss, 18 AD3d 18 (3d Dept 2005) aff’d 6 NY3d 636 (2006) ...... 167 Hixson v Cotton-Hanlon, Inc., 60 AD3d 1297 (4th Dept 2009) ...... 97 Hoagland v Kamp, 155 AD2d 148 (3d Dept 1990) ...... 109 Hodges v City of New York, 22 AD3d 525 (2d Dept 2005) ...... 68 Hoenig v Westphal, 52 NY2d 605 (1981) ...... 47 Holbrook v Pruiksma, 43 AD3d 603 (3d Dept 2007) ...... 175 Holder v Bowery Sav. Bank, 250 AD2d 813 (2d Dept 1998) ...... 123, 133 Holshek v Stokes, 122 AD 2d 777 (2d Dept 1986) ...... 123, 146 Homsey v Castellana, 289 AD2d 201 (2d Dept 2001) ...... 137 Hooks v Court Street Medical, P.C., 15 AD3d 544 (2d Dept 2005) ...... 74 Hornbrook v Greek Peak/Peak Resorts, Inc., 2002 WL 1967928, 2002 NY Slip Op 40348 (U) (Sup Ct, Tompkins County, 2002 Relihan, Jr., J.) ...... 143 Horner v Way, 257 AD2d 819 (3d Dept 1999) ...... 105 Hotaling v CSX Trans., 5 AD3d 964 (3d Dept 2004...... 140 Hughes v Webb, 40 AD3d 1035 (2d Dept 2007) ...... 56, 69, 97 Humphrey v Jewish Hospital and Medical Center of Brooklyn, 172 AD2d 494 (2d Dept 1991) ...... 106 Hunt v Ryzman, 292 AD2d 345 (2d Dept 2002) ...... 86 Hyung Kee Lee v New York Hosp. Queens, 118 AD3d 750 (2d Dept 2014) ...... 139 Iasello v Frank, 257 AD2d (1st Dept 1999) ...... 56, 122 In re Anthony WW., 86 AD3d 654 (3d Dept 2011) ...... 151 In re Bentleigh O., 125 AD3d 1402 (4th Dept 2015) ...... 19 In re Dakota F., 110 AD3d 1151(3d Dept 2013) ...... 152 In re Kaitlyn X., 122 AD3d 1170 (3d Dept 2014) ...... 152 In re Katz, 230 App Div 172, 243 NYS 96 (1st Dept 1930) ...... 10 In re Mason, 60 Hun 46, 14 NYS. 434 (1891) ...... 161 185

©Doctors & Their Records at Trial Benedene Cannata, 2015 In the Matter of Principe v McCall, 255 AD2d 853 (3d Dept 1998) ...... 116 Ingleston v Francis, 206 AD2d 745 (3d Dept 1994) ...... 114 Inzinna v Brinker Restaurant Corp., 302 AD2d 967 (4th Dept 2003 ...... 117 Ithier v Solomon, 59 AD2d 935 (2d Dept 1977) ...... 165 Jacobs v Madison Plastic Surgery, P.C., 106 AD3d 530 (1st Dept 2013) ...... 170 Jajoute v NYCH&HC, 242 AD2d 674 (2d Dept 1997) ...... 18 Jakobson v Multi Hacking Corp., 2003 WL 21697042, 1 (App Term, 2d and 11th Jud Dists 2003) ...... 68 James v Farhood, 96 AD3d 503 (1st Dept 2012)...... 6 Jemmott v Lazofsky, 5 AD3d 558 (2d Dept 2004) ...... 16, 149 Jessmer v Martin, 46 AD3d 1059 (3d Dept 2007) ...... 51, 54 Jezowski v Beach, 59 Misc 2d 224 (Sup Ct Oneida County 1968) ...... 9 Jill S. v Stephen S., 43 AD3d 724 (1st Dept 2007) ...... 136 Jing Xue Jiang v Dollar Rent a Car, Inc., 91 AD3d 603 (2d Dept 2012) ...... 87 Johnson v Ayyub, 115 AD3d 1191 (4th Dept 2014) ...... 39 Johnson v Greenberg, 35 AD3d 380 (2d Dept 2006) ...... 63 Jones v Sherpa, 5 AD3d 634 (2d Dept 2004) ...... 72 Josephson v Higgins, 243 AD2d 444 (2d Dept 1997) ...... 67 Joyce v Kowlcewski, 80 AD2d 27 (4th Dept 1981) ...... 29 Julia v City of New York, 295 AD2d 591 (2d Dept 2002) ...... 159 Julien v Physician’s Hospital, 231 AD2d 678 (2d Dept 1996) ...... 107 Kahvejian v Pardo, 125 AD3d 936 (2d Dept 2015) ...... 113 Kalkan v Nyack Hospital, 227 AD2d 382 (2d Dept 1996) ...... 61 Kamolov v BIA Grp., LLC, 79 AD3d 1101 (2d Dept 2010) ...... 22 Kaplan v Karpfen, 57 AD3d 409 (1rst Dept 2008) ...... 103 Karashik v Brenner, 111 AD2d 150 (2d Dept 1985) ...... 123, 156 Karaylanakis v Grommery, 141 AD2d 610 (2d Dept 1988) ...... 31 Karwacki v Astoria Medical Anesthesia, 23 AD3d 438 (2d Dept 2005) ...... 50 Kasel v Szczecina, 51 AD3d 872, 873 (2d Dept 2008) ...... 82 Kasman v Flushing Hosp. and Medical Center ...... 12, 174, 179 Kelly v State, 259 AD2d 962 (4th Dept 1999) ...... 109 Kelly v Tarnowski, 213 AD2d 1054 (4th Dept 1995) ...... 94 Kerr v Vinokur, 37 AD3d 418 (2d Dept 2007) ...... 102, 138 Kinard v South Shore Dialysis Ctr., 37 AD3d 545 (2d Dept 2007) ...... 149 Kirker v Nicolla, 256 AD2d 865 at 867 (3d Dept 1998) ...... 168 Kirschhoffer v Van Dyke, 173 AD2d 7 (3d Dept 1991) ...... 124 Klatsky v Lewis, 268 AD2d 410 (2d Dept 2000) ...... 61 Kleeschulte v Blair, 20 Misc 3d 1114(A) (Sup Ct, Ulster County, 2008, Lynch, J.) ...... 77 Klempner v Leone, 277 AD2d 287 (2d Dept 2000) ...... 124 Kletnieks v Brookhaven Memorial Association, Inc., 53 AD2d 169 (1976) ...... 106 Klombers v Lefkowitz, 131 AD2d 815 (2d Dept 1987) ...... 50, 174 Knutson v Sand, 282 AD2d 42 (2d Dept 2001) ...... 112, 119 Koren v Weihs, 201 AD2d 268 (1st Dept 1994) ...... 89 Kosiorek v Bethlehem Steel Corp., 145 AD2d 935 (4th Dept 1988) ...... 144 Kovacev v Ferreira Bros Contracting, Inc., 9 AD3d 253 (1st Dept 2004) ...... 33, 145 Krimkevitch v Imperiale, 104 AD3d 649 (2d Dept 2013) ...... 62, 124 Krinsky v Rachleff, 276 AD2d 748 (2d Dept 2000) ...... 86 Krygier v Airweld, Inc., 176 AD2d 700 (2d Dept 1991) ...... 59 Kun Sik Kim v State St. Hospitality, LLC, 121 AD3d 760 (2d Dept 2014) ...... 112 Kurth v Wallkill Associates, 132 AD2d 529 (2d Dept 1987) ...... 73 La Forte v Tiedemann, 41 AD3d 1191 (4th Dept 2007) ...... 150, 152 LaDuke v State Farm Insurance Co., 158 AD2d 137 (4th Dept 1990) ...... 18 LaFurge v Cohen, 61 AD3d 426 (1st Dept 2009) ...... 60, 105 Lagrasta v Ettayyim, 5 AD3d 737 (2d Dept 2004) ...... 175 Langhorne v County of Nassau, 40 AD3d 1045 (2d Dept 2007) ...... 56 Lanigan v United School Bus, Inc., 2 AD3d 410 (2d Dept 2003) ...... 67 186

©Doctors & Their Records at Trial Benedene Cannata, 2015 Lanpont v Savvas Cab Corp., Inc., 244 AD2d 208 (1st Dept 1997) ...... 19 Lauto v Catholic Health Sys., Inc., 125 AD3d 1352 (4th Dept 2015) ...... 89 Law v Moscowitz, 279 AD2d 844 (3d Dept 2001) ...... 130 Lee v Huang, 291 AD2d 549 (2d Dept 2002) ...... 147 Lee v Shields, 188 AD2d 637 (2d Dept 1992) ...... 144 Lennon v Metro N. Commuter, 51 AD3d 432 (1st Dept 2007) ...... 71 Lenzini v Kessler, 48 AD3d 220 (1st Dept 2008) ...... 166 Lewis v Port Authority of New York and New Jersey, 8 AD3d 205 (1st Dept 2004) ...... 126 Lidge v Niagara Falls Medical Center, 17 AD2d 1033 (4th Dept 2005) ...... 132 Lila v Bata, 33 AD3d 875 (2d Dept 2006) ...... 69 Link v Sheldon, 64 Hun 632 (4th Dept 1892), affd. 136 NY 1 (1892) ...... 161 Lipschitz v Stein, 10 AD3d 634 (2d Dept 2004) ...... 39, 161 Lisa E.G. v Genesee Hospital, 48 AD3d 1064 (4th Dept 2008) ...... 38 Lissak v Cerabona, 10 AD3d 308 (1st Dept 2004)...... 59 Logan v Roman, 58 AD3d 810 (2d Dept 2009) ...... 72, 87, 157 Lombardi v Wlazlo, 170 AD2d 653 (2d Dept 1991) ...... 50 Lopez v Consolidated Edison Co. of New York, Inc., 40 AD3d 221 (1st Dept 2007) ...... 146 López v Gem Gravure Company, 50 AD3d 1102 (2d Dept 2008) ...... 104 Lucian v Schwartz, 55 AD3d 687 (2d Dept 2008) ...... 30, 62, 87, 157 Madsen v Merola, 288 AD2d 520 (3d Dept 2001) ...... 140 Malanga v City of New York, 300 AD2d 549 (2d Dept 2002) ...... 86 Mannino v Agway Inc. Grp. Trust, 192 AD2d 131 (2d Dept 1993) ...... 80 Manoni v Giordano, 102 AD2d 846 (2d Dept 1984 ...... 49 Mantuano v Mehale, 258 AD2d 566 (2d Dept 1999) ...... 85 Maraviglia v Lokshina, 92 AD3d 924 (2d Dept 2012) ...... 178 Marshall v 130 North Bedford Road Mount Kisco Corp., 277 AD2d 432 (2d Dept 2000) ...... 73 Martinez v NYCTA, 41 AD3d 174 (1st Dept 2007 ...... 21 Martino v Bendo, 93 AD3d 500 (1st Dept 2012) ...... 106 Marzuillo v Isom, 277 AD2d 362 (2d Dept 2000) ...... 118 Mateo v 83 Post Ave. Associates, 12 AD3d 205 (1st Dept 2004) ...... 73 Matott v Ward, 48 NY2d 455 (1979) ...... 110 Matszewska v Golubeya, 293 AD2d 580 (2d Dept 2002) ...... 124, 138 Matter of Damon J., 144 AD2d 467 (2d Dept 1988) ...... 17 Matter of Kai B. v Masako O., 38 AD3d 882 (2d Dept 2007) ...... 18 Matter of Siegel v County of Monroe, 207 AD2d 959 (4th Dept 1994) ...... 179 Matzoros v Koval, 160 AD2d 686 (2d Dept 1990) ...... 66 Maxcy v County of Putnam, 178 AD2d 729 (3d Dept 1991) ...... 18 Mazurek v Home Depot USA, Inc., 303 AD2d 960 (4th Dept 2003)...... 91 McClain v Lockport Memorial Hospital, 236 AD2d 864 (4th Dept 1997) lv den 89 NY2d 817 (1998) 51, 63, 171 McClure v Baier's Automotive Service Center, Inc., 126 AD2d 610 (2d Dept 1987) ...... 7 McDermott v Manhattan Eye, Ear and Throat Hospital, 15 NY2d 20 (1964) ...... 118 McDougald v Garber, 135 AD2d 80 (1st Dept 1988) mod. on other grounds 73 NY2d 246 (1989) ...... 55 McKenna v Connors, 36 AD3d 1062 (3d Dept 2007) ...... 69 McNeill v LaSalle Partners, 52 AD3d 407 (1st Dept 2008) ...... 127, 156 Mead v Dr. Rejaphyax Dental Group, 34 AD3d 1139 (3d Dept 2006) ...... 65 Medical Capital Corp. v MRI Global Imaging, Inc., 52 AD3d 482 (2d Dept 2008) ...... 35 Meegan v Progressive Ins. Co., 43 AD3d 182 (4th Dept 2007 ...... 16 Meiselman v Crown Heights Hospital, 258 NY 389 (1941) ...... 108 Mendola v Richmond OB/GYN Associates , 191 M 2d 699 (Sup Ct, Richmond County, 2002 Giacobbe, J.) .... 52 Mercado v Trabman, 164 Misc 2d 339 (App Term 1st Dept 1995) ...... 53 Mercedes v Amusements of America, 160 AD2d 630 (1st Dept 1990)...... 25 Metropolitan New York Coordinating Council on Jewish Poverty v FGP Bush Terminal, Inc., 1 AD3d 168 (1st Dept 2003) ...... 114 Meyer v Board of Trustees of the New York City Fire Dept., Article 1-B Pension Fund by Safir, 90 NY2d 139 at 145-146 ...... 93 187

©Doctors & Their Records at Trial Benedene Cannata, 2015 Meyer v Zeichner, 263 AD2d 597 (3d Dept 1999) ...... 62 Miller v Galler, 45 AD3d 1325 (4th Dept 2007) ...... 132, 172 Moon Ok Kwon v Martin, 19 AD3d 664 (2d Dept 2005) ...... 104 Moreno v Fabre, 47 AD3d 545 (1st Dept 2007) ...... 126 Morse v Columbo, 31 AD3d 916 (3d Dept 2006) ...... 179 Munoz v 608-610 Realty Corp., 194 AD2d 496 (1st Dept 1993) ...... 144 Mura v Gordon, 252 AD2d 485 (2d Dept 1998) ...... 67 Murphy v Colombia University, 4 AD3d 200 (1st Dept 2004) ...... 145 Murray v Weidenfeld, 37 AD3d 432 (2d Dept 2007) ...... 30 Musaid v Mercy Hosp. of Buffalo, 249 AD2d 958 (4th Dept 1998) ...... 29 Musso v Earth Movers Inc., 240 AD2d 846 (3d Dept 1997) ...... 112 Muzio v Anthony R. Napolitano, M.D., P.C., 82 AD3d 947 (2d Dept 2011) ...... 75 Myers v Sadlor 16 AD3d 257 (1st Dept 2005) ...... 36 Napolitano v Branks, 141 AD2d 705 (2d Dept 1988) ...... 6 Navarette v Alexiades, 50 AD3d 873 (2d Dept 2008) ...... 64 Neel v Mount Sinai Hospital, 196 Misc 2d 343 (App Term 1st Dept 2003) ...... 63 Nelson v Bogopa Serv. Corp., 123 AD3d 780 (1st Dept 2014) ...... 27 Nelson v Friends of Associated Beth Rivka School for Girls, 119 AD3d 536 (2d Dept 2014) ...... 23 Neumire v Kraft Foods, Inc., 291 AD2d 784 (4th Dept 2002) ...... 15, 142 Newmark v Animal Emergency Clinic of Hudson Valley, 38 AD3d 1110 (3d Dept 2007) ...... 69 Nissen v Rubin, 121 AD2d 320 (1st Dept 1986) ...... 99 Norton v Nguyen, 49 AD3d 927 (3d Dept 2008) ...... 87 Nuzzo v Castellano, 254 AD2d 265 (2d Dept 1998) ...... 147 O'Brien v Mbugua, 49 AD3d 937 (3d Dept 2008) ...... 151 O'Brien v Barretta, 1 AD 3d 330 (2d Dept 2003) ...... 176 Ocampo v Pagan, 68 AD3d 1077 (2d Dept 2009) ...... 64 O'Connor v Inc. Village of Port Jefferson ...... 19 Orner v Mount Sinai Hosp., 305 AD2d 307 (1st Dept 2003) ...... 120 Osinski v Taefi, 13 AD3d 1205 (4th Dept 2004) ...... 38, 40 Overeem v Neuhoff, 254 AD2d 398 (2d Dept 1998) ...... 85, 156 Padilla v Freelund, 7 AD3d 258 (1st Dept 2004) ...... 95 Padovani v Miller, 8 AD3d 251 (2d Dept 2004) ...... 50 Palchik v Eisenberg, 278 AD2d 293 (2d Dept 2000) ...... 133 Pardodefigueroa v Turner Construction Corp., 33 AD3d 601 (2d Dept 2006) ...... 33 Parese v Shankman, 300 AD2d 1087 (4th Dept 2002) ...... 104 Passino v DeRosa, 199 AD2d 1017 (4th Dept 1993) ...... 28 Paulino v Marchelletta, 216 AD2d 446 (2d Dept 1995) ...... 12 Payant v Imobersteg, 258 AD2d 702 (3d Dept 1998) ...... 109 Peat v Fordham Hill Owners Corp., 110 AD3d 643 (1st Dept 2013)...... 175 Pegg v Shahin, 237 AD2d 271 (2d Dept 1997) ...... 147 People v Andrew, 1 NY3d 546 (2003) ...... 24 People v Baltimore, 301 AD2d 610 (2d Dept 2003) lv den, 100 NY2d 592 (2003) ...... 22 People v Beckwith, 289 AD2d 956 (4th Dept 2001) ...... 142, 162 People v Bynum, 33 AD3d 1017 (1st Dept 2006) ...... 8 People v Cruz, 233 AD2d 102 (1st Dept 1996) ...... 110 People v Darrow, 260 AD2d 928 (3d Dept 1999) ...... 160 People v Fernandez, 304 AD2d 504 (1st Dept 2003) ...... 25 People v Greenlee, 70 AD3d 966 (2d Dept 2010) lv. den 14 NY3d 888 (2010) ...... 22 People v Hamilton, 96 AD3d 1518 (4th Dept 2012) ...... 105 People v Jessamy, 282 AD2d 288 (1st Dept 2001)...... 9 People v Johnson, 70 AD3d 1188 (3d Dept 2010) ...... 28 People v Kohlmeyer, 284 NY 366 (1940) ...... 154 People v Kossman , 46 AD3d 1104 (3d Dept 2007) ...... 18 People v Menegan, 107 AD3d 1166 (3d Dept 2013)...... 104 People v Monroe, 307 AD2d 588 (3d Dept 2003) ...... 104 188

©Doctors & Their Records at Trial Benedene Cannata, 2015 People v Morehouse, 5 AD3d 925 (3d Dept 2004) ...... 104 People v Ortega, 15 NY3d 610 (2010) ...... 20 People v Paun, 269 AD2d 546 (2d Dept 2000) ...... 103 People v Rogers, 8 AD3d 888 (3d Dept 2004) ...... 23 People v Rose, 41 AD3d 742 (2d Dept 2007) ...... 166 People v Singleton, 140 AD2d 388 (2d Dept 1988) ...... 22 People v Sugden, 35 NY2d 453 (1974) ...... 134 People v Watrous, 270 AD2d 651 (3d Dept 2000) ...... 159 People v White, 306 AD2d 806 (4th Dept 2003) ...... 23 People v Wyant, 98 AD3d 1277 (4th Dept 2012) ...... 92 People v Yun, 35 AD3d 494 (2d Dept 2006) ...... 22 Perrone v Grover, 272 AD2d 312 (2d Dept 2000) ...... 85 Peterson v Zuercher, 198 AD2d 797 (4th Dept 1993) ...... 177 Pickering v Freedman, 32 AD2d 649 (2d Dept 1969) ...... 10 Pierson v Yourish, 122 AD2d 202 (2d Dept 1986) ...... 49 Pilecki v Cromwell, 300 AD2d 1007 (4th Dept 2002) ...... 131 Placakis v City of New York, 289 AD2d 551 (2d Dept 2001) ...... 175 Pleeter v Cole, 88 AD3d 538 (1st Dept 2011) ...... 42 Pola v Nycz, 281 AD2d 839 (3d Dept 2001) ...... 125, 157 Popkave v Ramapo Radiology Associates, P.C., 44 AD3d 920 (2d Dept 2007) ...... 129 Porcelli v N. Westchester Hosp. Ctr., 65 AD3d 176 (2d Dept 2009) ...... 75 Poser v Varnitsky, 46 AD3d 1295 (3d Dept 2007) ...... 76 Postlethwaite v United Health Services Hospital, 5 AD3d 892 (3d Dept 2004)...... 105 Preldakaj v Alps Realty of N.Y. Corp., 69 AD3d 455 (1st Dept 2010) ...... 21 Prescott v Le Blanc,247 AD2d 802 (3d Dept 1998) ...... 116 Progressive Northeastern Insurance Co. v Randazzo, 24 AD3d 560 (2d Dept 2005) ...... 27 Proia v Ciszewski, 231 AD2d 871 (4th Dept 1996) ...... 54 Pugliese v D'Estrada, 259 AD2d 743 (2d Dept 1999) ...... 67 Putchlawski v Diaz, 192 AD2d 444 (1st Dept 1993) ...... 93 Quispe v Lemle & Wolff, Inc., 266 AD2d 95 (1st Dept 1999) ...... 25 Rabinowitz v Elimian, 55 AD3d 813 (2d Dept 2008) ...... 129 Ramsen A. v New York City Hous. Auth., 112 AD3d 439 (1st Dept 2013) ...... 63 Randolph v Warnecke, 1 AD3d 731 (3d Dept 2003) ...... 34 Raptis-Smith v St. Joseph's Med. Ctr., 302 AD2d 246 (1st Dept 2003) ...... 82 Raudzens v New York City Transit Authority, 85 AD2d 722 (2d Dept 1981) ...... 159 Reed v City of New York, 304 AD2d 1 (1st Dept 2003) ...... 117, 122 Reilly v Ninia, 81 AD3d 913 (2d Dept 2011) ...... 115, 139, 164, 171 Rho v Ambach, 144 AD2d 774 (3d Dept 1988) ...... 108 Richter v Trailways of New England, 28 AD2d 737 (2d Dept 1967) ...... 146 Riley v Wieman, 137 AD2d 309 (3d Dept 1988) ...... 108, 109 Rivenburg v Highland Hosp. of Rochester, 72 AD3d 1571 (4th Dept 2010) ...... 132 Rivera v Anilesh, 32 AD3d 202 (1st Dept 2006) ...... 121 Rivera v City of New York, 107 AD2d 331 (1st Dept 1985) ...... 54 Rivera v City of New York, 212 AD2d 403 (1st Dept 1995) ...... 100 Rivera v City of New York, 293 AD2d 383 (1st Dept 2002) ...... 25 Rivera v La Guardia Hosp., 12 AD3d 585 (2d Dept 2004) ...... 119 Rivera v. Port Auth. of New York & New Jersey, 2015 WL 1471600 (1st Dept 2015) ...... 7, 174 Robertson v Greenstein, 308 AD2d 381 (1st Dept 2003) ...... 106 Robles v Polytemp, Inc., __AD3d__, No. 12078/09, 2015 WL 1810031 (2d Dept 2015) ...... 23 Rodman v Ardsley Radiology, 103 AD3d 871 (2d Dept 2013) ...... 37 Rodriguez v City of New York, 67 AD3d 884 (2d Dept 2009) ...... 8 Rodriguez v Piccone, 5 AD3d 763 (2d Dept 2004) ...... 22 Rodriguez v Pontillo, 278 AD2d 400 (2d Dept 2000) ...... 91 Rojas v MVIAC, 37 AD3d 216 (1st Dept 2007) ...... 21 Rokitka v Barrett, 303 AD2d 983 (4th Dept 2003) ...... 88 189

©Doctors & Their Records at Trial Benedene Cannata, 2015 Romero v City of New York, 260 AD2d 461 (2d Dept 1999) ...... 67 Rook v 60 Key Centre, 239 AD2d 926 (4th Dept 1997) ...... 88 Roseingrave v Massapequa General Hosp., 298 AD2d 377 (2d Dept 2002) ...... 179 Ruddock v Happell, 307 AD2d 719 (4th Dept 2003) ...... 132 Ruzycki v Baker, 9 AD3d 854 (4th Dept 2004) ...... 92 Ryan v City of New York, 269 AD2d 170 (1st Dept 2000)...... 83, 154 Ryan v St. Francis Hosp., 62 AD3d 857 (2d Dept 2009) ...... 129, 139 Sabatino v Turf House, Inc., 76 AD2d 945 (3d Dept 1980) ...... 11 Saccone v Gross, 84 AD3d 1208 (2d Dept 2011) ...... 165 Saldivar v IJ White Corp., 46 AD3d 660 (2d Dept 2007 ...... 64 Sanchez v MABSTOA, 170 AD2d 402 (1st Dept 1991) ...... 25, 159, 177 Scanga v Family Practice Associate of Rockland, P.C., 27 AD3d 547 (2d Dept 2006) ...... 138 Scannapieco v New York City Transit Authority, 200 AD2d 410 (1st Dept 1994) ...... 48, 154 Schaefer v HC Health Care Plan, 283 AD2d 977 (4th Dept 2001) ...... 121 Schou v Whitely, 9 AD3d 706 (3d Dept 2004) ...... 28, 140, 179 Schozer v William Penn Life Insurance Company of New York, 84 NY2d 639 (1994)...... 33 Schwartz v Gerson, 246 AD2d 589 (2d Dept 1998) ...... 11 Schwartz v Tab Operating Co., 239 AD2d 244 (1st Dept 1997) ...... 83, 154 Scott v Mason, 155 AD2d 655 (2d Dept 1989) ...... 96 Searle v Cayuga Medical Center at Ithaca, 28 AD3d 834 (3d Dept 2006) ...... 140 Seawright v Crooks, 87 AD3d 1345 (4th Dept 2011) ...... 153 Senn v Scudieri, 165 AD2d 346 (1st Dept 1991) ...... 25 Serpe v Eyris Productions, Inc, 243 AD2d 375 (1st Dept 1997) ...... 122 Serra v City of New York, 215 AD2d 643 (2d Dept 1995) ...... 14 Serrano v Rajamani, 6 AD3d 1191 (4th Dept 2004)...... 164 Shahram v Horwitz, 5 AD3d 1034 (4th Dept 2004) ...... 19, 142 Shane MM v Family and Children Services, 280 AD2d 699 (3d Dept 2001) ...... 164 Shefer v Tepper, 73 AD3d 447 (1st Dept 2010) ...... 75 Shehata v Sushiden American Inc, 190 AD2d 620 (1st Dept 1993) ...... 55 Sheridan v Bieniewicz, 7 AD3d 508 (2d Dept 2004) ...... 163 Shinder v Altorki, 309 AD3d 799 (2d Dept 2003) ...... 171 Siemucha v Garrison, 111 AD3d 1398 (4th Dept 2013) ...... 6 Sigue v Chemical Bank, 284 AD2d 246 (1st Dept 2001)...... 14, 145 Silverberg v Community General Hospital of Sullivan County, 290 AD2d 788 (3d Dept 2002) ...... 65 Simon v Econocraft Worldwide Mfg., Inc., 38 AD3d 303 (1st Dept 2007) ...... 135 Singh v Catamount Development Corp., 21 AD3d 824 (1st Dept 2005) ...... 101 Smith v Vohrer, 62 AD3d 528 (1st Dept 2009) ...... 56 Smolinski v Smolinski, 78 AD3d 1642 (4th Dept 2010) ...... 23 Soltis v State, 188 AD2d 201 (3d Dept 1993) ...... 121 Soriano v Inoa, 73 AD3d 459 (1st Dept 2010)...... 84 Spensieri v Laskey, 94 NY2d 231 (1999) ...... 162 Sperduti v Mezger, 283 AD2d 1018 (4th Dept 2001) ...... 117 St. Hilaire v White, 305 AD2d 209 (1st Dept 2003) ...... 91 Staley v New York State And Local Retirement Systems, 290 AD2d 721 (3d Dept 2002)...... 15 Stark v Semeran, 244 AD2d 894 (4th Dept 1997), lv dism 91 NY2d 956 (1998) ...... 88, 158 State v Floyd Y., 22 NY3d 95 (2013) ...... 144 State v J.A., 21 Misc 3d 806 (Sup Ct Bronx County 2008, Riviezzo, J.)...... 146 State v Motzer, 79 AD3d 1687 (4th Dept 2010) ...... 152 Stein v Lebowitz-Pine View Hotel, Inc., 111 AD2d 572 (3d Dept 1985) ...... 8 Steinbach v Stern, 2 AD3d 709 (2d Dept 2003) ...... 103 Stevens v Auburn Memorial Hosp., 286 AD2d 965 (4th Dept 2001) ...... 70 Stevens v Maimone, 6 AD3d 1222 (4th Dept 2004) ...... 118 Straub v Yalamanchili, 58 AD3d 1050 (3d Dept 2009) ...... 76 Stylianou v Calabrese, 297 AD2d 798 (2d Dept 2002) ...... 96 Suhr v Long Beach Medical Center, 35 AD3d 440 (2d Dept 2006) ...... 59 190

©Doctors & Their Records at Trial Benedene Cannata, 2015 Suib v New York City Board of Education, 309 AD2d 920 (2d Dept 2003) ...... 117 Sullivan v DRA Imaging, P.C., 34 AD3d 371 (1st Dept 2006)...... 164 Swezey v Montague Rehab & Pain Mgmt., P.C., 84 AD3d 779 (2d Dept 2011) ...... 51 Syracuse v Diao, 272 AD2d 881 (4th Dept 2000) ...... 58 Tannenbaum v Tenenbaum, 8 AD3d 360 (2d Dept 2004) ...... 72 Taylor v Daniels, 244 AD2d 176 (1st Dept 1997) ...... 55, 121 Texter v Middletown Dialysis Center, Inc., 22 AD3d 831 (2d Dept 2005) ...... 107 The American Medical Association Code of Medical Ethics, 9.07 ...... 77 Thomas v 14 Rollins Street Realty Corp. 25 AD3d 317 (1st Dept 2006) ...... 96, 133 Thompson v Swiantek, 291 AD2d 884 (4th Dept 2002) ...... 59 Tojek v Root, 34 AD3d 1210 (4th Dept 2006) ...... 125 Tonaj v ABC Carpet Co., Inc., 43 AD3d 337 (1st Dept 2007) ...... 49, 84 Toth v Community Hosp. at Glen Cove, 22 NY2d 255 (1968) ...... 108 Trombin v City of New York, 33 AD3d 564 (1st Dept 2006) ...... 135 Tsatsakis v Booth Memorial Medical Center, 37 AD3d 591 (2d Dept 2007) ...... 61 Valdez v Sharaby, 258 AD2d 458 (2d Dept 1999) ...... 170 Vander Wel v Palazzo, 155 AD2d 387 (1st Dept 1989) ...... 30, 98 Vega v Lapalorcia, 281 AD2d 623 (2d Dept 2001) ...... 120 Velez v Policastro, 1 AD3d 429 (2d Dept 2003) ...... 127 Velez v Svehla, 229 AD2d 528 (2d Dept 1996) ...... 136 Venancio v Clinton Wholesale Florist, Inc., 1 AD3d 505 (2d Dept 2003) ...... 148 Wagman v Bradshaw, 292 AD2d 84 (2d Dept 2002) ...... 14, 147 Wagner v Kingston Hospital, 182 AD2d 616 (2d Dept 1992) ...... 90 Wall v Shepard, 53 AD3d 1050 (4th Dept 2008) ...... 92 Wang v 161 Hudson, LLC, 60 AD3d 668 (2d Dept 2009) ...... 33 Ward v Kovacs, 55 AD2d 391 (2d Dept 1977) ...... 111 Warner v Adelphi University, 283 AD2d 486 (2d Dept 2001) ...... 86 Washington v 550 West 158th Street Realty Corp., 137 AD2d 426 (1st Dept 1988)...... 48 Watkins v Labiak, 6 AD3d 423 (2d Dept 2004) ...... 166 Weigert v Baker, 217 AD2d 1011 (4th Dept 1995) ...... 98, 141 Weinberg v Remyco, Inc., 9 AD3d 425 (2d Dept 2004)...... 44 Weinstein v New York Hospital, 280 AD2d 333 (1st Dept 2001) ...... 145 Weiss v Bellevue Maternity Hosp., 121 AD3d 1480 (3d Dept 2014) ...... 37 Westchester Med Ctr v Progressive Cas., 51 AD3d 1014 (2d Dept 2008) ...... 18 Wetzler v Sisters of Charity Hospital, 17 AD3d 1088 ( 4th Dept 2005) ...... 38 White v Kyung Kim, 29 AD3d 685 (2d Dept 2006) ...... 9 Wierzdicki v Matthew, 8 AD3d 476 (2d Dept 2004) ...... 32 Wilbur v Lacerda, 34 AD3d 794 (2d Dept 2006) ...... 13 Williams v Alexander, 309 NY 283 (1955) ...... 24 Williams v Halpern, 25 AD3d 467 (1st Dept 2006) ...... 105 Wilson v Bodian, 130 AD2d 221 (2d Dept 1987) ...... 4, 9, 10 Wilson v Hallen Const. Corp., 40 AD3d 986 (2d Dept 2007) ...... 129 Winiarski v Harris, 78 AD3d 1556 (4th Dept 2010) ...... 165 Wright v New York City Housing Authority, 273 AD2d 378 (2d Dept 2000) ...... 22 Wright v Stam, 81 AD3d 721(2d Dept 2011) ...... 76 Wylie v Consol. Rail Corp., 229 AD2d 966 (4th Dept 1996) ...... 81, 88 Zarnoch v Williams, 83 AD3d 1373 (4th Dept 2011) ...... 102 Zito v City of New York, 49 AD3d 872 (2d Dept 2008) ...... 27 Zysk v Bley, 24 AD3d 757 (2d Dept 2005) ...... 68, 114

191

I, Custodian of Records/OfFrce Coordinator, an employee authorized by MEDICAL GROI]P to certiS records for this institution, hereby certifr that to the best of my knowledge, after reasonable inquiry, the MEDICAL RECORDS or copies thereof are accurate and exact photocopies of the original medical records in the custody of this institution and is the full and complete record of the condition, act, transaction, occurrence or event of the institution concerning:

Patient's name

Patient's Date of Birth

I further certifu that the medical records, copies of which are attached, were made by the personnel or staff of lVlediçAllq@up, or persons acting under their control in the regular course of business, at the time of the act, fansaction, occurïence or event recorded therein, or within a reasonable time thereafter, and that it was the regular course of business to make such records.

Signature

Title

Sworn to before me this

day of 2016

Notary Public HOSPITAT BITLS CERTIFICATION

Custodian of Records/Office Coordinator, an employee authorized by HOSPITAT to certify records for this institution, hereby certify that to the best of my knowledge, after reasonable inquiry, the MEDICAL Bltts or copies thereof are accurate and exact photocopies of the original medical bills in the custody of this institution, and the bill is correct, that each of the items listed was necessarily supplied, and the amount charged therefor is reasonable and is the full and complete records of the condition, act, transaction, occurrence or event of the institution concerni ng:

Patient's name Date of Birth

Medical Record No..:

I further certify that the medical bills, copies of which are attached, were made by the personnel or staff of the business, or persons acting under their control in the regular course of business, at the time of the act, transaction, occurrence or event records therein, or within a reasonable time thereafter, and that it was the regular course of business to make such records.

Signature

Sworn to before me this

day of 20L6

Notary Public MEDICAT RECORDS CERTIFICATION

Custodian of Records/office coordinator, an employee authorized by (name of facility) to certify records for this institution, hereby certify that to the best of my knowledge, after reasona ble i nq u i ry, the HOSPITAI/IN-PATIENT/OUT-PATI ENT MEDICAL RECORDS or copies thereof are accurate and exact photocopies of the original hospital/medical records in the custody of this institution and is the full and complete records of the condition, act, transaction, occurrence or event of the institution concerni ng:

Patient's name Date of Birth

Record No.:

I further certify that the (hospital/in-patient/out-patient medical records), copies of which are attached, were made by the personnel or staff of name of facil or persons acting under their control in the regular course of business, at the time of the act, transaction., occurrence or event recorded therein, or within a reasonable time thereafter, and that it was the regular course of business to make such records.

Signature Sworn to before me this

day of 2016

Notary Public M EDICAT BI tts CERTI FICATION

Custodian of Records/Office Coordinator, an employee authorized by D to certify records for this office, hereby cert¡fy that to the best of my knowledge, after reasonable inquiry, the MEDICAI BIILS or copies thereof are accurate and exact photocopies of the original medical bills in the custody of DR. ,and the bill is correct, that each of the items listed was necessarily supplied, and the amount charged therefor is reasonable, and is the full and complete records of the condition, act, transaction, occurrence or event of this office concerning:

Patient's name Date of Birth

Signature

Sworn to before me this

day of L6

Notary Public SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ______------X Index No.: ______,

Plaintiff(s), PHYSICIAN’S -against- AFFIDAVIT

______,

Defendants.

------X STATE OF ) ) SS. COUNTY OF )

I, ______, M.D., a physician duly licensed to practice medicine in the State of ______, being duly sworn, deposes and says:

I am a board certified radiologist duly licensed by the State of ______with current offices at ______.

On ______, MRI’s of the cervical and lumbar spine of plaintiff, ______was taken at ____{facility’s name}______located at ______{Address of facility}______.

The MRI of the cervical spine bears identifying number ______. The MRI of the lumbar spine bears identifying number ______.

All of the above are referred to in the annexed Attorney’s Notice of Intention to Offer MRIs into Evidence.

I hereby attest that the following information, photographically inscribed on the MRI and/or on the CD of the MRI are true and correct: (a) the name of the injured party; (b) the date when the MRI images were taken; (c) the identifying numbers thereof, and (d) Physicians Group, LLC, all of which are as stated above.

I further attest that, if called as a witness in the above-entitled action, I would testify to all of the above relating to this MRI, in the manner set forth in this affidavit.

Dated: ______, 2016

______, M.D.

Sworn to me before this

______day of ______, 2016

______NOTARY PUBLIC

*{Please note that physicians licensed in New York State do not have to be notarized, can be affirmed.} Robert C. Baxter is among the most experienced and formidable trial attorneys in the New York Metropolitan area. Mr. Baxter is also admitted to the United States Supreme Court and various Federal Appellate Courts. From 1989 to 1995, Mr. Baxter served as senior trial attorney for two major defense firms in New York City. In 1995, he left to form Baxter & Smith, P.C.; the predecessor firm to Baxter Smith & Shapiro P.C. Mr. Baxter has been involved in the defense of many construction accident cases including the March 15, 2008 crane collapse case. Also, he regularly lectures on a variety of topics involving the litigation and trial of complex torts. He is currently trial and appellate counsel to the State Insurance Fund of the State of New York for cases involving “grave injury” and has appeared on their behalf in the Court of Appeals, in the matter of Largo-Chiciaza v. Westchester Scaffold Equipment Corp. He previously served on the Executive Committee for the Torts, Insurance & Compensation Law (TICL) Section of the New York State Bar Association. Mr. Baxter lectures extensively for the New York State Bar Association and recently was a speaker at the Labor Law/Construction Accidents in New York – The Law and the Trial seminar where he conducted the cross examination of the plaintiff. He previously was a speaker at a seminar on Recent Developments in the Court of Appeals held in Killarney, Ireland. He also spoke at the New York State Bar Association’s 2002 Annual Meeting. He has lectured at the Buffalo Claims Association, and served as Moderator for their mock trial program at their 2003 Annual Convention. He is a graduate of Touro College School of Law.

Richard A. Gurfein is a principal at GurfeinDouglas and a past president of the New York State Trial Lawyers Association. Before being admitted to practice, he was an Electrical Engineer and a High School Math teacher. He tried his first case 10 days after becoming a lawyer and hasn't stopped for 40 years. His success as a trial lawyer representing injured clients has gained him membership in the elite "Million Dollar Advocates Forum". Since his admission to the Bar in 1972, Mr. Gurfein has been trying cases ranging from simple negligence to medical malpractice and complex products liability. His teaching experience has always helped him educate judges and juries about his clients' cases. Mr. Gurfein continues his teaching activities by educating lawyers on topics ranging from computer research to the Law of Evidence and from how to try a malpractice case to how to prepare an expert witness. Mr. Gurfein has appeared on many radio and television programs about the cases he has handled. He has been honored by organizations for his work on behalf of his clients and on behalf of lawyers who represent injured consumers. The former Chief Judge of New York, Judge Judith Kaye, invited Mr. Gurfein to be a member of several committees created to find ways lawyers can better serve the community and their clients. Mr. Gurfein is listed in Who's Who in the World, Who's Who in American Law and 4 other Who's Who publications as well as having been selected to the Super Lawyers list each year since 2007. Mr. Gurfein is also the President of an internet company, Trial1.com, Inc. His company provides internet services to lawyers, judges and the public. He is a graduate of Brooklyn Law School.

Justice Lucy Billings is a graduate of Smith College, magna cum laude and Phi Beta Kappa, and the University of California at Berkeley School of Law with honors. She prepared for service on the New York State Supreme Court as a lawyer for 25 years at the ACLU National Headquarters and as Litigation Director in Legal Services, handling class actions and other complex civil rights litigation to establish and enforce new rights for disenfranchised minority, disabled, and low-income persons of every background. She forged new legal remedies through litigation addressing issues not previously addressed in housing, environmental justice, including preventing lead poisoning, public health, child welfare, education, and employment. She has presided over complicated, high profile class actions and other actions and proceedings. They include State agencies' unlawful procedures for collecting debts, Mayor Giuliani's unlawful attempts to prohibit street artists from selling their work, repeated sexual abuse of schoolchildren under the Board of Education's watch, corruption and unsanitary conditions in the public markets, and major construction site disasters. She has written over 250 published decisions, as well as published legal education materials. Examples of her decisions include reformation of the standards and procedures for employed public assistance recipients, for issuing business licenses, and for granting and revoking parole and prohibition of other unlawful government practices. As early as 2008, she recognized same sex marriages. Other decisions have found new avenues of recovery to injured construction workers, pothole victims, and families of infants who die at birth due to medical malpractice.

Benedene Cannata is Senior Counsel at The Flomenhaft Law Firm. She is a graduate of New York Law School. She is in charge of the firm’s appeals, motion papers, and legal memoranda and has appellate experience in all four New York appellate divisions. She has vast experience in personal injury cases stemming from premises liability, construction law, motor-vehicle accidents, as well as medical and legal malpractice. The plaintiffs in many of these cases suffered catastrophic injury, such as traumatic brain injury, cerebral palsy, quadriplegia, and Complex Regional Pain Syndrome (CRPS) also known as Reflex Sympathetic Dystrophy (RSD). Ms. Cannata has presented Continuing Legal Education courses for the Monroe County Bar Association, the New York City Bar, and the New York State Bar Association. In November 2014 she moderated a panel entitled “The Admissibility of Neuroscientific Evidence in the Courtroom” as part of the Neuroscience in the Courtroom education course presented at Fordham Law School. Ms. Cannata is a dedicated member of the New York State Academy of Trial Lawyers. She has served on the Academy’s Board of Directors, and has written monthly reviews of appellate division decisions for both the First and Fourth Departments. In 2008, she became a Dean of the Academy and in that capacity has presented more than 35 Continuing Legal Education courses on various subjects relating to personal injury practice, including evidence, discovery. expert witnesses, appeals, and legal writing. Her course “Physicians and Their Records at Trial” has been presented more than sixteen times, including at the 2015 Court of Claims Justices conference in Lake Placid. Her publications include the First and Second Editions of NEW YORK JUDGE REVIEWS (1997 James Publishing Company), an annotated reference book profiling over 200 New York State Supreme Court Justices. She authored a chapter on Motions In Limine for the upcoming New York State Bar Association treatise, PLAINTIFF’S PERSONAL INJURY ACTIONS IN NEW YORK. Her model motion in limine regarding the competency and scientific acceptability of biomechanical engineering testimony in motor-vehicle accident cases appears in LITIGATING MIST CASES, published by West Group. She also contributed to the ATLA (now AAJ) Motor Vehicle and Premises Liability Section newsletters. While in law school, Ms. Cannata worked on various scholarly publications as research assistant to E. Donald Shapiro, the Joseph Solomon Distinguished Professor of Law and Supernumerary Fellow of St. Cross College at Oxford University, and served as an articles editor for the Journal of Human Rights. Her article, The Widow and the Sperm: The Law of Post- Mortem Insemination, written with Professor Shapiro and published in the Cleveland-Marshall Journal of Law & Health, has been cited in over 75 scholarly publications, including law reviews and medical journals.