A three-year-old boy had a stage IV tumor removed. Further surgery was required to remove lymph nodes and his fifth finger to the wrist. Thereafter, the child underwent one month of a high-dose treatment with Interferon-alpha (IFN-a), followed by 11 months of a low-dose IFN-a treatment.
The boy’s father sued the doctors and their practice group for medical malpractice. Specifically, the complaint alleged that they failed to timely diagnose his son’s melanoma and the treatment with IFN-a caused long-term cognitive deficits, resulting in future loss of earnings and future life care expenses for the child. The doctors and the practice group moved to preclude expert testimony regarding the alleged causal relationship between IFN-a treatment and long-term cognitive deficits or, in the alternative, for a Frye hearing (see Frye v. United States, 293 F 1013 (App.D.C. Dec 03, 1923)).
The Onondaga County Supreme Court denied the doctors’ and practice group’s motions to preclude the expert testimony or for a Frye hearing.
The Appellate Division of the New York Supreme Court, Fourth Department, affirmed. The court held that the trial court did not abuse its discretion in denying that the motions seeking to preclude the expert testimony of a physician and a neuropsychologist and properly denied the motions seeking a Frye hearing.
The trial court did not abuse its discretion in denying the motions seeking to preclude the expert testimony of a physician and a neuropsychologist. The court reasoned that the doctors and practice group supported their motions with the expert affidavit of a board-certified neuropsychologist, who opined that the theory of causation for the child's cognitive deficits espoused by the father's experts, i.e., that the IFN-a treatment caused those deficits, was not generally accepted in the scientific community. The doctors’ and practice group’s expert acknowledged that chemotherapy can cause damage to healthy brain tissue and result in cognitive/neuropsychological deficits, but he disputed that IFN-a is a chemotherapeutic agent. In response, the father provided the redacted affidavit of his undisclosed expert, a board-certified physician in pediatrics and pediatric hematology-oncology, who opined with a reasonable degree of medical certainty that the child's neurocognitive, educational, and emotional disabilities were caused by the use of IFN-a to treat the melanoma and that this theory of causation was supported in the scientific community. The father's undisclosed expert disputed the assertion of the doctors’ and practice group’s expert that IFN-a is not a chemotherapeutic agent. The father's undisclosed expert supported the expert’s theory of causation with numerous articles discussing the negative cognitive effects experienced by adults during and after treatment with IFN-a and the negative long-term effects of chemotherapy treatment on the developing brains of children. The father's undisclosed expert conceded that there were no studies regarding the long-term cognitive effects on children from IFN-a treatment.
The trial court properly denied the motion seeking a Frye hearing. A Frye hearing does not address the reliability of a certain expert's conclusions, but instead whether the expert's deductions are based on principles that are sufficiently established to have gained general acceptance as reliable. At a Frye hearing, the court considers whether there is a proper foundation for the evidence to be admitted at trial. The court concluded that the trial court did not abuse its discretion in determining that there was a proper foundation for the father’s expert’s evidence. The father’s experts laid a foundation for the theory that the child's cognitive deficits were caused by treatment with IFN-a with generally accepted medical principles of the cognitive effects on adults treated with IFN-a, a chemotherapeutic agent, and the cognitive effects of chemotherapy on the developing brain of a child. The court explained that the underlying support for the theory of causation need not consist of cases or studies considering circumstances exactly parallel to those under consideration in the litigation. It is sufficient if a synthesis of various studies or cases reasonably permits the conclusions reached by the plaintiff's experts. The fact that there was no textual authority directly on point was relevant only to the weight to be given to the testimony, but did not preclude its admissibility.
The Appellate Division of the New York Supreme Court, Fourth Department, affirmed the trial court’s denial of the doctors’ and practice group’s motions to preclude expert testimony or for a Frye hearing.
See: Johnson v. Guthrie Medical Group, P.C., et al., 2015 WL 506274, 2015 N.Y. Slip Op. 01124 (N.Y.A.D. 4 Dept., February 6, 2015) (not designated for publication).
See also Medical Law Perspectives, November 2014 Report: More Than Skin Deep: Skin Cancer Misdiagnosis and Other Liability Issues
See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication