How much detail is reasonable in an expert witness report?
The Court of Appeals in Rivera v Montefiore Med. Ctr. 2016 NY Slip Op 06854 recently addressed this issue in affirming a lower court decision. In short, the court warned attorneys in the state of New York that it is their responsibility to ask for more if they feel there is not enough. The best way to keep from being gamed is to be diligent, not to expect a judge to intervene.
Plaintiff’s 44-year-old son, Wilbur Rodriguez, arrived at the Montefiore Medical Center emergency room with respiratory difficulty on January 24, 2009 at 11:45 a.m. and was admitted with a suspected diagnosis of pneumonia. He died hours later on January 25, 2009 between 4:00 and 4:40 a.m. The autopsy report identified the cause of death as bronchopneumonia complicated by diabetes.
The hospital was sued for failing to place the decedent in a ward where his vital signs could be continuously monitored.
Expert Witness Report
The defense disclosed that its medical expert would testify “on the issue of causation” and “as to the possible causes of the decedent’s injuries and contributing factors.” Plaintiff’s sole objection before trial was that the statement did not provide the dates of the expert’s medical residency, and defendant cured this omission.
Trial Testimony of Medical Expert
At trial, the treating physician testified that decedent’s death was caused in part by pneumonia. However, on cross examination he stated that he believed decedent instead died from acute cardiac arrhythmia.
Then plaintiff’s counsel brought the plaintiff’s expert to the stand. The medical expert testified that decedent’s death was caused in part by pneumonia. But, once again, on cross-examination the defense brought up the possibility of a heart attack being the cause of death. Unfortunately for the plaintiff, the medical expert acknowledged that a cardiac event was a possible cause of death.
Imagine the panic.
It was at this point plaintiff’s counsel objected. The attorney ask the judge to prevent “any testimony . . . regarding any possible causes of the decedent’s death” on the grounds that the disclosure statement “did not include any reasonable detail whatsoever as to what possible causes” led to decedent’s death.
The judge ruled against the plaintiff. With the groundwork laid, the defense called the defense’s medical expert. The expert testified that he disagreed with the autopsy report regarding the cause of death. He stated that according to the report decedent’s vital signs showed no indication of worsening respiration, that decedent’s other health issues increased his risk for cardiac problems, and that the cause of death was sudden, lethal cardiac arrhythmia. In closing, the defense argued that decedent’s cause of death was “sudden lethal cardiac arrhythmia.”
Plaintiff Won…But Lost
The jury found the hospital liable and awarded damages for past and future losses but $0 award for conscious pain and suffering.
The plaintiff appealed, complaining that the defense’s expert report lacked specificity as to the cause of death. The appellate court disagreed. The plaintiff appealed again and lost.
In short, the plaintiff’s lawyer was snookered (I think that is the correct legal terminology) and the judges weren’t willing to provide a bailout.
Moreover, the medical facts supported the jury’s conclusion on the issue of pain and suffering. Evidence demonstrated that the decedent was not in any respiratory distress the last time he was seen before the 40-minute window of his death; that he never used his call button, suggesting he died suddenly; and that he had a heart abnormality and other ailments that made him more susceptible to sudden cardiac arrest.
This case reiterates what lawyers and experts should already know. An incentive exists to game the system with a thin expert report to allow for courtroom surprises and wiggle room for alternate theories. Prevention is in the hands of opposing counsel. Use of a consulting expert witness to smoke out chicanery during review of reports and in depositions where necessary helps avoid being snookered.