Testimony as to cause and effect is frequently required to resolve complex cases involving claims of personal injury in the litigation of medical malpractice cases. These cases frequently involve patients who have complicated histories of underlying medical conditions which bring them to the health care provider in the first place. They may have multiple conditions and require maintenance on a number of pharmaceutical products which interact with one another differently in otherwise similar patients. Their own homeostasis may be affected by their response to medications and the effect of underlying conditions as their physiology changes in the presence of fluctuating comorbidities due to the aging process. The trajectory of any of their diseases is not always linear or predictable. The more complex the individual patient becomes, the more unique the patient is.
In the usual accident case, the previously healthy patient sustains reasonably definable trauma such as a fracture from a fall. There is little controversy in making the connection between the patient’s fractured pelvis and contact with the bumper of the taxi which struck her as she crossed the street precipitating her to the pavement. However, the expectation of a lay jury is that the patient would receive treatment and eventually recover completely from such an injury. Where the health care providers are included as defendants after a less than perfect outcome, the causation issues could involve far less clarity.
Every trial attorney has the basic understanding of the different roles of the fact witnesses, the expert witnesses, and the finder of fact. At common law, the fact witnesses were strictly limited to their factual observations, and not permitted to state opinions. [see Morehouse v. Mathews, 2 NY 514 (1849)] The Court of Appeals has confronted the opinion testimony issue in a variety of contexts over the years. In Gray v. Brooklyn Heights R. Co., 175 NY 448 (1903), the Court was faced with an appeal from a substantial trial award of damages to a woman who was under medical treatment for reproductive difficulties. At the time of the event, she was on her way home from medical treatment when she was involved in a minor collision which caused no injury to others who were involved. Her primary claim of injury was that she lost a pregnancy by miscarriage as a result of the impact. There was no medical proof that she was even pregnant, but she and several fact witnesses were permitted to testify that in fact she had miscarried. Even though the lay witnesses had some experience in observing the occurrence of a miscarriage, the Court held that their testimony exceeded the bounds of propriety, requiring a reversal. The Court stated the often-quoted maxim that the lay witnesses should have stated the facts only, and the medical expert testimony should have been considered according to its reliability, but the conclusions were for the jury. (Id at 453).
Traditionally, lay witnesses as opposed to experts may only testify to factual descriptions of conditions and circumstances surrounding an event, expert witnesses must demonstrate qualifications to validate their ability to state opinions, and it is the province of the jury to draw inferences from the testimony and reach the ultimate conclusion. Hartley v. Szadkowski, 32 AD2d 550 (2d Dept. 1969)] These neatly divided roles are understandable in theory but have not always been easy to apply to the evidence in a given case.
Even before medical malpractice litigation was as prevalent as it is today, the lay opinion issue was faced by the trial courts with uneven results. Over one hundred years ago, in the case of Pierpoint v. Fifth Avenue Coach Co., 151 AD2d 40 (2d Dept. 1912), the issues included whether it was the patient’s pre-existing heart condition or his accident which accounted for his claimed injuries. Reasoning that the patient would have been able to testify that he had a toothache, backache or headache, the Court sanctioned the testimony of the lay plaintiff that he had pain in his heart following the event. Strictly speaking, there are many causes of chest pain which are unrelated to the heart, which arguably distinguishes chest pain from pain in the head, tooth, or back. The plaintiff’s case was supported by a physician’s testimony, and the opinion testimony that the chest pain was related to the patient’s heart should have come from the doctor if he was qualified to give that opinion. The patient most certainly was not.
It has gradually developed that lay witnesses may be permitted to testify beyond strictly factual observations; however, where there is some indication that the witness is competent to have made and related valid conclusions. In Hochberg v. Travelers, 270 AD 857 (2d Dept. 1946), an action for disability payments under an insurance policy, the ultimate issue was whether the seizure disorder of the insured was such that it constituted an inability to work. Although the lay witnesses lacked the qualifications to diagnose the patient’s condition, the Court held that they were competent to give testimony as to the frequency of the episodes they observed, which supported the claim that the insured was disabled by frequent seizures.
Where the connection between injury and damages appears intuitive, as in Vincent-Wilday v. Strait, 273 AD2d 1054 (4th Dept. 1948), similar leeway has been extended. Although there were several conclusions involved in the testimony, the plaintiff was found competent to testify to his condition before and after the event of injury, and that he had lost the ability to work because his work caused pain which interfered with his ability to perform it.
In the areas of real property conveyance and estate work, the mental competence of one who has executed a document is often brought into question. Even where there are witnesses to the execution of those documents, the witnesses are usually not qualified to diagnosed mental competence. Thus in Gomboy v. Mitchell, 57 AD 2d 916 (2d Dept. 1977) the Court upheld the general New York rule that a lay person may testify as to whether the conversation or conduct of the person seemed rational, but may not express an opinion as to mental capacity, which determination is to be made by the finder of fact.
The testimony of police officers as to sobriety and the circumstances of vehicular accidents is frequently required to resolve legal issues at trial. Although there are police officers who have expertise in any number of areas, they are often situations in which they are asked to exceed that expertise, requiring a ruling from the trial court. Even where the officer has not witnessed the accident, he may be permitted to testify to his observations regarding the point of impact between two vehicles, but not to the cause of the accident or who was at fault. Almestica v. Colon, 304 AD2d 508 (2d Dept. 2003). The testimony of teachers as to a student’s ability to cope with the subjects taught by them following a head injury was clearly opinion testimony, but was permitted where there was medical testimony to support the causal connection between the injury and disability. Stanley v. Ford Motor Company, 49 AD2d 979 (3d Dept. 1975).
It is widely recognized by both the bench and bar that difficult fact patterns strain the ability of the courts to uniformly apply legal principles. With regard to the law on lay opinion testimony, this is amply demonstrated by the decision of Justice Nicholas Clemente in Cotilletta v. Tepedino, 151 Misc. 2d 660 (Sup Ct Kings Co, 1991). As a result of complications at a cesarean delivery, Mrs. Cotilletta did not regain consciousness and forty days later she experienced a second event which resulted in her death. The issue raised by the defendants on summary judgment motions was whether the claim for conscious pain and suffering was viable. Expert opinions were submitted to the Court supporting the contention of the defense that her level of neurological insult while she was under anesthesia for the delivery was such that during the remaining forty days of her life she did not possess a level of awareness which allowed her to experience “conscious” pain and suffering. The plaintiff relied on the observations and opinions of family members who maintained that the patient exhibited awareness of her environment and that tears would come from her eyes when they spoke to her. There were no opinions placed before the Court to repudiate what the Court termed a prima facie case for summary judgment, shifting the burden to the plaintiff to demonstrate a triable issue of fact. There was no evidence to demonstrate that even if entirely true, the observations of the family contradicted the medical evidence of the defendants that there was a lack of conscious awareness on the part of the plaintiff. Nevertheless, the Court found that even in this unique context the lay opinion testimony was admissible evidence of the consciousness of the patient.
This article is also on Law.com: Lay Opinion in the Context of Medical Malpractice Defense