Verdicts

Deceased's Hearsay Statements

A New York court denied a motion to dismiss a medical malpractice/wrongful death claim after finding that the plaintiff's medical expert could properly rely on the deceased's husband's report of her statements following surgery to form part of the basis for his opinion as to causation. Balzola v. Giese, 114205/09, NYLJ 1202588951606, at *1 (Sup., NY, Decided Feb. 5, 2013).

The deceased was a 32-year-old mother of two who died of an embolism following elective, outpatient, liposuction surgery. Her husband, the administrator of the estate, sued the medical professionals involved. The plaintiff/widower testified at his deposition that his wife told him she was suffering with chest pains and shortness of breath in the two days following surgery and prior to her death. It was his account of these ailments that formed a large part of the basis for the opinion of plaintiff's medical expert, Dr. Mark Taff, a pathologist and Chief Medical Examiner of Rockland County, NY. The plaintiff also testified that he telephoned the defendants to report his wife's symptoms but that they did not return his calls, and did not make any other attempt to follow up with the patient to see how she was faring.

All the defendants moved to dismiss, contending that even if evidence could be adduced to show they had departed from the standard of care, there was insufficient evidence of causation, as the death was so instantaneous that they would not have had the opportunity to intervene.

The court declined to dismiss the actions, finding that the plaintiff's medical expert could properly rely for part of the basis of his opinion on the widower's statements concerning his wife's complaints of shortness of breath and chest pain. Although her statements were hearsay, they were admissible under the Federal Rules of Evidence ' which have been accepted as law by New York courts ” as present sense impressions. The court referenced Fisch on New York Evidence, ' 1002, p. 581 (2d ed.), which states that present sense declarations derive their trustworthiness from four factors: “1) such statements are not subject to errors of memory; 2) being contemporaneous, they are to some degree spontaneous and unreflective; 3) the conditions or events to which the statements relate are usually open to the observation of the person to whom the statement was made and who can be cross-examined; and 4) the veracity of the declarant can be checked either through cross-examining him or the reporting witness.”

'

Deceased's Hearsay Statements

A New York court denied a motion to dismiss a medical malpractice/wrongful death claim after finding that the plaintiff's medical expert could properly rely on the deceased's husband's report of her statements following surgery to form part of the basis for his opinion as to causation. Balzola v. Giese, 114205/09, NYLJ 1202588951606, at *1 (Sup., NY, Decided Feb. 5, 2013).

The deceased was a 32-year-old mother of two who died of an embolism following elective, outpatient, liposuction surgery. Her husband, the administrator of the estate, sued the medical professionals involved. The plaintiff/widower testified at his deposition that his wife told him she was suffering with chest pains and shortness of breath in the two days following surgery and prior to her death. It was his account of these ailments that formed a large part of the basis for the opinion of plaintiff's medical expert, Dr. Mark Taff, a pathologist and Chief Medical Examiner of Rockland County, NY. The plaintiff also testified that he telephoned the defendants to report his wife's symptoms but that they did not return his calls, and did not make any other attempt to follow up with the patient to see how she was faring.

All the defendants moved to dismiss, contending that even if evidence could be adduced to show they had departed from the standard of care, there was insufficient evidence of causation, as the death was so instantaneous that they would not have had the opportunity to intervene.

The court declined to dismiss the actions, finding that the plaintiff's medical expert could properly rely for part of the basis of his opinion on the widower's statements concerning his wife's complaints of shortness of breath and chest pain. Although her statements were hearsay, they were admissible under the Federal Rules of Evidence ' which have been accepted as law by New York courts ” as present sense impressions. The court referenced Fisch on New York Evidence, ' 1002, p. 581 (2d ed.), which states that present sense declarations derive their trustworthiness from four factors: “1) such statements are not subject to errors of memory; 2) being contemporaneous, they are to some degree spontaneous and unreflective; 3) the conditions or events to which the statements relate are usually open to the observation of the person to whom the statement was made and who can be cross-examined; and 4) the veracity of the declarant can be checked either through cross-examining him or the reporting witness.”

'