It has long been accepted that expert opinion testimony is admissible in personal injury cases when it helps to clarify an issue calling for professional or technical knowledge, possessed by the witness but beyond the ken of the typical juror. DeLong v. Erie, 60 N.Y.2d 296 (1983). The trial of a medical malpractice case frequently involves issues upon which physician and non-physician experts may be able to provide opinion evidence helpful to the trier of fact.
Once the trial court exercises its discretion as to the admissibility of the expert’s opinions, the weight of the testimony as well as the other evidence is for the jury to determine. De Hernandez v. Lutheran Medical Center, 46 A.D.3d 517 (2d Dept. 2007).
As long ago as 1899, the Court of Appeals looked at the overall background experience of the proposed expert, not just academic degrees or occupational pursuits, to establish the parameters of the qualified expert who is fully competent to testify as such. People v. Rice, 13 E.H. Smith 400 (1899). The qualification of expert witnesses to testify in court does not only depend on their academic degrees, but may be demonstrated by showing practical experience in the field. Soriano v. St. Mary’s, 118 A.D.3d 524 (2d Dept. 2014).
In order to establish the liability of a physician for medical malpractice, plaintiff’s counsel must prove through expert testimony that the physician departed from the applicable standard of care, and that such departure was a proximate cause of the claimed injury. Stukas v. Streiter, 83 A.D.3d 18 (2d Dept. 2011).
Other areas of professional expertise, some intimately involved with medicine and some less so, are implicated in the cases which find their way to the appellate courts. It is useful to review these cases and how the courts have treated non-physician witnesses in order to predict how a proposed expert will be received. How will the court exercise its discretion on the scope of the admissible testimony? This issue arises frequently enough in the context of summary judgment motions and trials that useful precedent is available.
The court in DeHernandez included as distinct criteria for the exercise of the court’s discretion the “requisite skill, training, education, knowledge, or experience to render a reliable opinion.” 46 A.D.3d at 518. In that case, the Appellate Division sustained the trial court’s dismissal of the case at the end of plaintiff’s proof, holding that the plaintiff’s proof on the issue of causation was deficient. The plaintiff had relied on the testimony of a physicist who had studied the growth patterns of breast cancer, but this did not qualify him as an expert in the rate of growth of the plaintiff’s cancer or allow him to provide the critical support for the causation element of the plaintiff’s claim.
The criteria for this exercise of discretion are also discussed by a divided court in Karasik v. Bird, 98 A.D.2d 359, 363 (1st Dept. 1984), in which the court held that a credentialed non-physician pharmacologist should have been allowed to testify to the effects of the pharmaceuticals prescribed by the physician defendant and the role of the medications in the proximate cause of the patient’s death.
The discretion of the trial court is open to limited appellate review when that discretion has been abused or there is a serious error of law (Meiselman v. Crown Heights Hospital, 285 N.Y. 389 (1941)), but there are a number of published decisions demonstrating that litigants routinely submit that discretion to review.
The Appellate Division found no abuse of discretion in the trial court’s admission of a nursing expert’s opinion to support a verdict against the defendant hospital in O’Connor v. Kingston Hospital, 166 A.D.3d 1401 (3d Dept. 2018). The opinions stated by the nursing expert, which addressed both deviation from standards and causation, were held to have been within the boundaries of the expertise of the witness, and the testimony of a physician was not required to sustain the verdict for the plaintiff. Id. At 1403. At the other end of the spectrum, the court in LaFurge v. Cohen, 61 A.D. 426 (1st Dept. 2009), held that the plaintiff’s expert physicist was properly precluded from testifying to the biologically equivalent dosage of radiation administered to the patient as well as the effect upon the patient’s tissues.
It is instructive that the courts frequently hold that the testimony of a non-physician which directly addresses liability or causation (or both) will be credited to varying degrees in the presence of the supporting opinion of a physician. This is seen in Gage v. Dutkewych, 3 A.D.3d 629 (3d Dept. 2004), a case in which the defendant prevailed on a summary judgment motion supported by the opinion of an expert pharmacist which specifically addressed both the departure and causation issues, but was also supported in a general fashion by the affidavit of an infectious disease specialist. The court affirmed the dismissal, holding that the more conclusory physician’s affidavit opposing the motion was insufficient by comparison.
In similar fashion, the court in Reilly v. Cohen, 121 A.D.3d 961 (2d Dept. 2014), held that the defendant’s expert pharmacist and physician demonstrated prima facie entitlement to judgment as a matter of law, which could not be overcome by the physician’s affidavit of the plaintiff. The procedural history of Jordan v. Glens Falls Hospital, 261 A.D.2d 666 (3d Dept. 1999) patently demonstrates that an impressively qualified pharmacologist’s opinion is insufficient to defeat a well-supported summary judgment motion until the point at which the plaintiff adds the requisite physician’s support.
The decision in Douglass v. Gibson, 218 A.D.2d 856 (3d Dept. 1995) gives a complete outline of the court’s approach to the separate roles of the nurse expert, who may have had some knowledge of the use of patient restraints, and the physician expert, whose affidavit was needed to establish that the defendant physicians should have ordered a different approach to restraining the patient in issue. Finding that the plaintiff’s claim was not supported on either the departure prong or causation, the Appellate Division sustained the dismissal by the lower court.
In Star v. Berridge, 77 N.Y.2d 899 (1991), the Court of Appeals reversed the Appellate Division’s dismissal of the claims against the defendant, giving credit to the defendant’s expert physicist’s opinion, but finding a question of fact in the strength of the physician’s affidavit submitted in opposition by counsel for the plaintiff.
There are areas of medicine besides those dealing with nursing issues in which overlapping expertise comes into play. In Escobar v. Allen, 5 A.D.3d 242 (1st Dept. 2004), the Appellate Division reversed the lower court’s dismissal during trial. The trial court had declined to allow the expert podiatrist of the plaintiff to testify that the defendant orthopedists had departed from accepted standards in their surgical treatment of the plaintiff’s bunion, and had dismissed the claims sounding in medical malpractice, informed consent, and res ipsa loquitur. The Appellate Division restored all three causes of action and remanded the case for a new trial. The court was satisfied that the podiatrist had been licensed to treat the subject disorder, and had performed the same procedure as that attempted by the defendants. It held that the dismissal was premature in that plaintiff’s counsel was not given the opportunity to establish that the expert had the requisite educational and professional experience to testify to violations of the applicable standards of care.
An essentially identical result was reached with respect to the testimony of a podiatrist in Parese v. Shankman, 300 A.D.2d 1087 (4th Dept. 2002). However, the rules applicable to expert testimony do not apply where the non-physician expert is more fact witness than expert (cf. O’Neil v. Klass, 36 A.D.3d 677 (2d Dept. 2007)), so a careful offer of proof may be in order based upon the intended role of the witness.
Non-physician experts have a distinct role in the trial of medical malpractice cases, particularly during the proof of damages when a wide range of therapists, educators, vocational rehabilitationists, and even economists are permitted to testify.
The areas of potential difficulty are found on the liability side of the trial, where there are claimed deficiencies in the treatment itself and issues as to whether those deficiencies are causally related to the injuries claimed on behalf of the plaintiff. The non-physician professionals may occupy an important supporting role, however it is advisable to have the liability case underpinned by well-founded testimony from qualified physician experts.
This article is also on Law.com: The Parameters of Non-Physician Testimony in Medical Malpractice Trials