Verdicts

A Treating Physician Is Not an 'Expert'

Under New York law, a party offering the testimony of a treating physician is not subject to the notice requirements applicable to expert witnesses. Shecter v. Fuster, 117019/04, NYLJ 1202484316758, at *1 (Sup., NY, Decided Feb. 18, 2011).

Plaintiff, the executrix of the decedent's estate, brought suit against Valentine Fuster, M.D., the deceased's cardiologist. She claimed the doctor failed to perform a cardiac catheterization and coronary artery angiogram in 2001 and again in April 2003, causing the deceased to suffer a myocardial infarction that resulted in his death. The jury, finding no deviation from the standard of care, returned a verdict for the defense.

The plaintiff moved to set aside the verdict, contending that one of the deceased's treating physicians, Dr. Prabodhkumar Damani, had testified as an expert witness for the defendant without proper disclosure to her. Dr. Damani, the decedent's treating cardiologist since 1978, testified as a defense witness, stating he had not recommend an angiogram to the decedent in 2003 because the decedent was at that time in “reasonably good cardiac health.” The plaintiff argued that Dr. Damani's testimony went beyond the realm of the factual, moving into the area of expert testimony. Specifically, the plaintiff asserted that Dr. Damani offered his opinion regarding the crux of the case: whether the deceased should have undergone an angiography. The appellate court ruled that the plaintiff did not show Dr. Damani's testimony was improper; no notice of expert testimony was required in accordance with Civil Practice Law & Rules (CPLR) 3101(d)(1)(i), as that statute does not apply to treating physicians. In addition, the court found that Dr. Damani's opinion concerning why he did not order an angiogram was not based on the standard of care, but on his own clinical impressions. Therefore, the court denied the plaintiff's motion.

Court Should Have Accommodated Litigant's Religious Convictions

In a medical malpractice proceeding, the trial court abused its discretion by denying an Orthodox Jewish litigant's motion to postpone the proceedings where his religious beliefs prohibited his appearance at trial, or any advocacy on his behalf, on two Jewish holy days. Neustadter v. Holy Cross Hosp. of Silver Spring Inc., — A.3d —-, 2011 WL 656811 (Md.).

The medical malpractice plaintiff moved the trial court for accommodation of his religious observance of two Jewish holy days, on which he could not appear or allow anyone to appear on his behalf. The motion, made more than a month before the requested accommodation dates, was denied. The defendant hospital put on its entire case in chief on the two days that the plaintiff and his counsel could not be present. The jury returned a verdict for the defense. The Court of Special Appeals affirmed, holding that there was no constitutional violation of the litigant's right to free exercise of religion, particularly in light of his late notice to the court of the scheduling conflict.

Maryland's Supreme Court reversed, finding that the plaintiff's notice to the court and opposing counsel of the scheduling conflict “was not so untimely as to preclude accommodation or indicate an utter lack of diligence.” The court concluded that the trial court failed to reasonably accommodate the plaintiff's right to engage in religious conduct and had not meaningfully mitigated the effects of the plaintiffs absence. A new trial was therefore ordered.

A Treating Physician Is Not an 'Expert'

Under New York law, a party offering the testimony of a treating physician is not subject to the notice requirements applicable to expert witnesses. Shecter v. Fuster, 117019/04, NYLJ 1202484316758, at *1 (Sup., NY, Decided Feb. 18, 2011).

Plaintiff, the executrix of the decedent's estate, brought suit against Valentine Fuster, M.D., the deceased's cardiologist. She claimed the doctor failed to perform a cardiac catheterization and coronary artery angiogram in 2001 and again in April 2003, causing the deceased to suffer a myocardial infarction that resulted in his death. The jury, finding no deviation from the standard of care, returned a verdict for the defense.

The plaintiff moved to set aside the verdict, contending that one of the deceased's treating physicians, Dr. Prabodhkumar Damani, had testified as an expert witness for the defendant without proper disclosure to her. Dr. Damani, the decedent's treating cardiologist since 1978, testified as a defense witness, stating he had not recommend an angiogram to the decedent in 2003 because the decedent was at that time in “reasonably good cardiac health.” The plaintiff argued that Dr. Damani's testimony went beyond the realm of the factual, moving into the area of expert testimony. Specifically, the plaintiff asserted that Dr. Damani offered his opinion regarding the crux of the case: whether the deceased should have undergone an angiography. The appellate court ruled that the plaintiff did not show Dr. Damani's testimony was improper; no notice of expert testimony was required in accordance with Civil Practice Law & Rules (CPLR) 3101(d)(1)(i), as that statute does not apply to treating physicians. In addition, the court found that Dr. Damani's opinion concerning why he did not order an angiogram was not based on the standard of care, but on his own clinical impressions. Therefore, the court denied the plaintiff's motion.

Court Should Have Accommodated Litigant's Religious Convictions

In a medical malpractice proceeding, the trial court abused its discretion by denying an Orthodox Jewish litigant's motion to postpone the proceedings where his religious beliefs prohibited his appearance at trial, or any advocacy on his behalf, on two Jewish holy days. Neustadter v. Holy Cross Hosp. of Silver Spring Inc., — A.3d —-, 2011 WL 656811 (Md.).

The medical malpractice plaintiff moved the trial court for accommodation of his religious observance of two Jewish holy days, on which he could not appear or allow anyone to appear on his behalf. The motion, made more than a month before the requested accommodation dates, was denied. The defendant hospital put on its entire case in chief on the two days that the plaintiff and his counsel could not be present. The jury returned a verdict for the defense. The Court of Special Appeals affirmed, holding that there was no constitutional violation of the litigant's right to free exercise of religion, particularly in light of his late notice to the court of the scheduling conflict.

Maryland's Supreme Court reversed, finding that the plaintiff's notice to the court and opposing counsel of the scheduling conflict “was not so untimely as to preclude accommodation or indicate an utter lack of diligence.” The court concluded that the trial court failed to reasonably accommodate the plaintiff's right to engage in religious conduct and had not meaningfully mitigated the effects of the plaintiffs absence. A new trial was therefore ordered.