EMAIL TO A FRIEND COMMENT

 

Untimely Mid-Trial Objection to Expert Based on Insufficient Pretrial Disclosure


A man presented to a hospital with symptoms of pneumonia. He was admitted to a unit of the hospital that did not continuously monitor patients’ vital signs. The man died early the next morning. The autopsy report identified the cause of death as bronchopneumonia complicated by diabetes.

 

The man’s estate sued the hospital for medical negligence.

 

The hospital served an expert disclosure statement on the estate. The statement informed the estate that the hospital’s expert would testify on the issue of causation and the possible causes of the man’s injuries and contributing factors. The estate objected that the expert disclosure statement did not provide the dates of the expert’s medical residency. The hospital cured this omission.

 

At trial the hospital treating physician testified that the man died in part due to pneumonia. On cross-examination the hospital treating physician stated that he believed the man died from acute cardiac arrhythmia.

 

The estate’s expert also testified that the man’s death was caused in part by pneumonia. On cross-examination the estate’s expert acknowledged that a cardiac event was a possible cause of death.

 

The estate moved to preclude the hospital’s expert from giving any testimony regarding any possible causes of the man’s death on the grounds that the hospital’s expert disclosure statement did not include any reasonable detail as to what possible causes led to the man’s death. The Bronx County Supreme Court denied the motion as untimely.

 

The hospital’s expert testified that he disagreed with the state expert and the autopsy report regarding the cause of death. He testified that the man’s vital signs showed no indication of worsening respiration, the man’s other health issues increased his risk for cardiac problems, and the cause of death was sudden, lethal cardiac arrhythmia. In the hospital’s counsel’s closing statement, he argued that the man’s cause of death was sudden lethal cardiac arrhythmia.

 

The jury found that the hospital liable based on the failure to place the man in an area of the hospital with continuous monitoring and awarded the estate damages. The estate moved for an order striking all testimony regarding cardiac arrhythmia as the cause of death in setting aside the zero dollar award for conscious pain and suffering, arguing that the expert disclosure statement failed to include the theory that the man died of sudden lethal cardiac arrhythmia and so the disclosure was deficient. The trial court again denied the motion as untimely.

 

The Appellate Division of the New York Supreme Court, First Department, affirmed. The appellate court held that the state failed to timely object to the lack of specificity in the expert disclosure statement and that the estate was not justified in assuming that the hospital’s expert’s testimony would comport with the autopsy report conclusion. The appellate court reasoned that when the estate’s own experts acknowledged that sudden cardiac arrhythmia was a possible cause of death considering the man’s medical history and condition, and when evidence in the record supported this theory, the hospital’s expert’s testimony need not be stricken as unfair surprise.

 

The Court of Appeals of New York affirmed. The court held that the trial court did not abuse its discretion in denying as untimely the estate’s motion to preclude the testimony of the hospital’s expert on the grounds that the hospital’s expert disclosure statement was deficient.

 

The trial court did not abuse its discretion in denying as untimely the estate’s motion to preclude the testimony of the hospital’s expert on the grounds that the hospital’s expert disclosure statement was deficient. Trial courts possess broad discretion in their supervision of expert disclosure. The estate made its motion made the trial immediately prior to the hospital’s expert’s testimony. The hospital’s expert disclosure identified causation as a subject of the expert’s testimony but did not provide any indication of a theory or basis for the expert’s opinion. The trial court was entitled to determine, based on the facts and circumstances of this particular case, that the time to challenge the statement’s content had passed because the basis of the objection was readily apparent from the face of the disclosure statement and could have been raised, and potentially cured, before trial. The hospital’s expert’s theory was premised on ample evidence in the record.

 

The Court of Appeals of New York affirmed the trial court’s denial as untimely the estate’s motion to preclude the testimony of the hospital’s expert on the grounds that the hospital’s expert disclosure statement was deficient.

 

See: Rivera v. Montefiore Medical Center, 2016 WL 6104602 (N.Y., October 20, 2016) (not designated for publication).

 

See also Medical Law Perspectives, December 2015 Report: Pneumonia Complications, Hospitalizations, Deaths: Risks and Liabilities

 

See also Medical Law Perspectives, November 2013 Report: Diagnosis and Treatment of Heart Attacks: Liability Issues 

 

 

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