SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF XXXXXXXX -------------------------------------------------------------------X JOHN SLAVKO, Index No. 4524/2012
Plaintiff, -againstNELLY PHYSICIAN, M.D. and NELLY PHYSICIAN P.C., Defendants. -------------------------------------------------------------------X
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO PRECLUDE TESTIMONY BY THE PLAINTIFF’S EXPERT WITNESS
Respectfully submitted,
___________________________ Lydia Lawyer Offce of Lydia Lawyer, PLLC Attorneys for Plaintiff 123 Vermont St., Suite 999 Brooklyn, NY 11807
Dated: Brooklyn, NY October XX, 2017
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PRELIMINARY STATEMENT This is not a case, as the defendants urge, about “the proposition that a patient, who is an inmate at a correctional facility…is not a candidate” for a given procedure. It is a case about this patient, John Slavko, not being a candidate for a macular hole repair, at a time and under circumstances where defendants knew that he did not have access to medically necessary follow-up care, and while he was incapable of giving his informed consent to the procedure. Defendants do not claim that plaintiff’s expert is unqualifed to offer testimony generally. They contend only that the expert is unqualifed to opine about a specifc procedure, i.e. “retinal surgery to repair a macular hole.” But the defendants don’t offer a single case that supports their contention; their authority is completely limited to general propositions unaccompanied by any factual analysis. And the defendants do not dispute that the plaintiff's expert may offer general testimony as to her specialty of ophthalmologic surgery, but research yielded no cases where a physician may testify as to a given specialty but is barred from discussing a one particular procedure within that specialty. Research has, however, found abundant cases where experts in one feld of medicine may testify across a broad range of other specialties. This proposition is discussed below, and allows the expert's testimony here.
THE EXPERT'S QUALIFICATIONS Defendant Dr. Physician testifed at her deposition that she became Board-certifed in ophthalmology in 2010. She then continued her training in retinal surgery, a subspecialty of ophthalmology. This is undisputed. Dr. Fulla Info, the expert whom defendants seek to preclude as “unqualifed,” is an ophthalmologist and ophthalmologic surgeon, licensed to practice medicine in the State of
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Texahoma and certifed by American Board of Ophthalmology. She is familiar with retinal surgical procedures through her experience in managing care of patients who have received retinal surgery and those who are scheduled to receive it, including the procedures at issue here. She is therefore familiar with risk factors, contraindications, and factors for the success of each of these procedures. Dr. Info is also a Fellow of the American Academy of Ophthalmology and a Fellow of the American College of Surgeons. Dr. Info’s testimony will be based on her review of the plaintiff's medical records, the pleadings and depositions in this case, and any other evidence which defendants present at trial. Her opinions will be based on her residency and fellowship training in ophthalmology and ophthalmologic
surgery
and
her
personal
clinical
experience
as
a
Board-certifed
ophthalmologist and ophthalmologic surgeon, among other permissible grounds. In sum, Dr. Info is trained in the same specialty of ophthalmology as defendant Dr. Physician. She has a reliable basis for understanding retinal care and retinal care management, and she is familiar with ophthalmological surgery and the guidelines and management of retinal surgical patients. The precedent described below shows that cases across New York State, including from the department where this Court sits, require denying defendants’ request to preclude her testimony.
ARGUMENT Point I. DEFENDANTS HAVE NOT PROVIDED A BASIS TO PRECLUDE PLAINTIFF’S QUALIFIED EXPERT OPHTHALMOLOGIST. At the outset, defendants fail to acknowledge that in accepting and considering this expert’s affrmation in opposition to the defense motion for summary judgment, this Court has already implicitly found Dr. Info to be qualifed.
More substantively, the only case law in defendants’ motion is so bland and on such 3
uncontroversial topics (for example, the elements of a medical malpractice claim or when expert testimony is appropriate) that it appears to be cited purely for cosmetic purposes. There is nothing in their motion which offers an analogical precedent for precluding this expert on these facts. Their cited authority is functionally useless in guiding this Court. It is and has been well-established for over a century that a physician need not be a specialist in a particular feld in order to be considered a medical expert. Fuller v. Preis, 35 N.Y.2d 425, 431 (1974) (citing People v. Rice, 159 N.Y. 400 [1899]); Black v. State, 125 A.D.3d 1523 (4th Dept. 2015) (“We reject defendant's contention that the opinion of decedent's expert should be given no weight because his expertise is in the area of neurology, while the prison physician is an internist. The expertise of decedent's expert does not imply a lack of familiarity with the standards applicable to a general practitioner or internist.”); Humphrey v. Jewish Hosp. and Med. Center of Brooklyn, 172 A.D.2d 494 (2nd Dept. 1991) (“[a] physician need not be a specialist in a particular feld in order to be considered a medical expert”). Defendants' arguments epitomize issues of weight, not admissibility, which are matters for the jury and not this Court to assess. See Fuller v. Preis, 35 N.Y.2d 425, 431 (1974); Gordon v. Tishman Construction Corp., 264 A.D.2d 499 (2nd Dept. 1999); Smith v. City of New York, 238 A.D.2d 500 (2nd Dept. 1997). Indeed, excluding a medical expert for a non-identical practice specialty is reversible error. Bodensiek v. Schwartz, 292 A.D.2d 411, 739 N.Y.S.2d 405 (2nd Dept. 2002) (new trial ordered following court’s refusal to allow oncologist to testify against gynecologist); Gordon v. Tishman Construction Corp., 264 A.D.2d 499 (2nd Dept. 1999) (new trial ordered on damages where court excluded neurologist and rehabilitative medicine expert on basis that he was not a neurosurgeon); Enu v. Sobol, 171 A.D.2d 302 (3rd Dept. 1991) (“appellate courts have rejected claims of error directed at a physician's qualifcations to offer an opinion outside the scope of his specialty when the witness's specialty is closely related to the specialty at issue”). In Ariola v. Long, 197 A.D.2d 605, 602 N.Y.S.2d 666 (2nd Dept. 1993), lv. to app. dis., 82 N.Y.2d 920, 610 N.Y.S.2d 154 (1994), another case involving a macular defect, the trial court
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erred in precluding an expert ophthalmologist who testifed that he had never performed the laser surgery at issue, but he was familiar with the standards of care it required. The trial court should have allowed this testimony, because “[t]he expert's lack of personal experience in performing [the procedure] was a factor to be evaluated by the jury and went to the weight to be given his testimony, and not its admissibility. By curtailing this expert's testimony the trial court prevented the plaintiff from eliciting the expert testimony necessary to establish a prima facie case that the defendant had deviated from the standard practice and that the defendant failed to secure the plaintiff's informed consent.” The Third Department cited Ariola for this proposition in Flower v. Noonan, 271 A.D.2d 825 (3rd Dept. 2000), endorsing a rejection of the same tired arguments defendants are making on strikingly similar facts here. Courts have also allowed medical experts to testify outside their specialty in the following cases (in addition to others too numerous to reference here): • Diel v. Bryan, 71 A.D.3d 1439 (4th Dept. 2010) (Board-certifed anesthesiologist testifed in case involving administration of anesthesia during a dental procedure) • Williams-Simmons v. Golden, 71 A.D.3d 413 (1st Dept. 2010) (“Although not a radiologist, plaintiffs' medical expert, an internist and medical oncologist, was qualifed to opine as to the propriety of defendants' care of plaintiff.”) • Dykstra v. Avalon Rest. Renovations, Inc., 60 A.D.3d 446 (1st Dept. 2009) (general surgeon with subspecialty in vascular surgery not required to have practiced orthopedic surgery, where surgeon had requisite knowledge regarding preventing blood clots during surgery) • Bodensiek v. Schwartz, 292 A.D.2d 411 (2nd Dept. 2002) (oncologist may testify against a gynecological surgeon) • Willett v. Schneidermesser, 279 A.D.2d 520 (2nd Dept. 2001) (orthopedic and neurological surgeon may testify against podiatrician) • Mineo v. Owen W. Young, M.D., P.C., 248 A.D.2d 1012 (4th Dept. 1998) (radiologist competent to testify against orthopedic surgeon)
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• Smith v. City of New York, 238 A.D.2d 500 (2nd Dept. 1997) (non-psychiatrist physician’s opinion admissible regarding plaintiff’s conversion hysteria) • Allone v. University Hospital of NYU Med. Ctr., 235 A.D.2d 447 (2nd Dept. 1997) (neurologist testifying against neurosurgeon or pediatrician) • Humphrey v. Jewish Hosp. and Med. Ctr. of Brooklyn, 172 A.D.2d 494 (2nd Dept. 1991) (general surgeon testifying against obstetrician/gynecologist) The Third Department has also held repeatedly that “any alleged lack of skill or experience goes to the weight to be given to the [expert’s] opinion, not its admissibility.” Plourd v. Sidoti, 69 A.D.3d 1038 (3rd Dept. 2010); Bell v. Ellis Hosp., 50 A.D.3d 1240, 1241 (3rd Dept. 2008); cf . Postlethwaite v. United Health Services Hospitals, Inc., 5 A.D.3d 892 (3rd Dept. 2004) (anesthesiologist and pharmacologist permitted to testify as to certain accepted medical practices in internal medicine, gastroenterology, general surgery and nursing, but testimony as to diagnostic practices within divergent felds was properly excluded). Where the plaintiff’s expert has specifcally established her experience in managing care of retinal surgery patients—and where retinal surgery is merely a subspecialty within plaintiff’s expert’s practice area of ophthalmology—she is qualifed to testify on this issue.
CONCLUSION The law and facts of this case show an expert whose qualifcations are entirely consistent with expert witnesses who have testifed before New York courts in the past. The expert is an ophthalmological surgeon who has provided exactly the type of care management at issue here. If defendants dispute her ability to challenge actions by a different ophthalmological surgeon based on the specifc region of the eye where the procedure was performed, then the proper body to decide this dispute is the jury, not the Court. Hranek v. United Methodist Homes of the Wyoming Conference, 27 A.D.3d 879 (3rd Dept. 2006); Hoagland v. Kamp, 155 A.D.2d 148 (3rd Dept. 1990).
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“[T]here is no requirement that a medical expert witness be a specialist in the same feld as the parties to the lawsuit,” Payant v. Imobersteg, 256 A.D.2d 702 (3rd Dept. 1998). To fall prey to defendants’ fimsy arguments and hold otherwise would be error. Robertson v. Greenstein, 308 A.D.2d 381 (1st Dept. 2003).
___________________________
Lydia Lawyer
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