Hornbrook v. Peak Resorts, Inc.Hornbrook v. Peak Resorts, Inc.
OPINION OF THE COURT
This is a motion in limine. Plaintiff, at trial, will seek to prove that a ski lift injury sustained on January 24, 1997 resulted in an injury to the left femur, chronic pain and a per
Since January 1997 plaintiff has been treated by no less than five physicians and surgeons and has undergone three surgeries. However, none of these treating doctors will be called by the plaintiff to give testimony and none have been deposed. Instead, plaintiff proposes to call a single medical expert witness, an orthopod, who saw the plaintiff only once on February 18, 2002, five years after the injury. The expert, Dr. Maloney, has read the written evaluations of Doctors Anderson, Racker, Garner, Damron and Weiner and is prepared to testify to the findings, diagnoses, operative procedures, results and prognoses found in the notes and written reports of these treating doctors.
Dr. Anderson, an orthopaedic specialist, first saw plaintiff in February 1997. Maloney reports that the Anderson notes describe the plaintiff’s complaints and make an initial diagnosis of a nondisplaced fracture of the acetabulum but an X ray, Maloney states, did not detect any evidence of the fracture. Plaintiff continued to have low-grade pain. She was treated by Dr. Racker who administered multiple injections which, Maloney reports, “did not give her significant relief.”
Plaintiff returned to Dr. Anderson about 10 months later. Maloney states that Anderson recommended that she see a Dr. Garner, a pain management specialist. “Their impression,” Maloney states, was a “left SI joint and dysfunction secondary to the trauma sustained January 24, 1997.” Since “she did not respond,” Dr. Garner sent her for a bone scan which was performed in March 1998 and found a “lytic lesion in the proximal femur.”
Anderson, Maloney states, then sent her to Dr. Damron, an orthopaedic oncologist, who had bone scans and a CT scan performed. Maloney reports that Damron “states that he has seen micro stress fractures felt to be the cause of pain with fibrous dysplasia.” It is not clear, from this report, that the reference is to the plaintiff or other patients he has seen. In May 1998 Damron incised the lesion, performed a curettage and bone grafting and installed a locking gamma nail to stabilize the femur. Maloney reports that she continued to have pain and was referred to a pain center in New York City. In July 1998, Maloney reports, plaintiff saw Damron again who, Maloney says, concurred in the decision to have her receive trigger point injections for persistent pain.
Then, Maloney reports, she sought treatment from Dr. Weiner, also in New York City. The Weiner records, Maloney
Evidence regarding all of these extended medical facts and conclusions must come from Dr. Maloney. Having reviewed his opinion letter to plaintiffs counsel, it is abundantly clear that his conclusions will be heavily, if not totally, dependent upon the notes and records of the treating doctors. We have no doubt that he is a qualified orthopaedic surgeon but he is not a treating physician. He was retained by counsel for plaintiff, on the eve of trial, for the single purpose of reviewing the notes and records of others in order to give opinion testimony regarding the nature and extent of the plaintiffs injury, the likely cause of that injury, and the many medical and surgical interventions which followed.
We assume that the notes and records routinely kept by the treating doctors in the course of their practice will be produced and identified at trial and will be authenticated by a witness with personal knowledge of such record keeping matters. Certified hospital records, presumably, will also be produced. Business entries of this kind are admissible in evidence for the truth of the matters asserted in such records. (CPLR 2306, 4518 [c]; 4532-a; Wilson v Bodian,
Assuming that no such foundation is laid, however, a much different issue may arise. The Court of Appeals, in People v Stone (
The enlarged rule, in Stone and Sugden (supra), permits the expert, in addition to facts in evidence, to “rely on material,
More fundamentally, the courts of New York have been reluctant to permit any but a treating physician to rely upon the “accepted or reliable” exception to the rule against hearsay. The reason is plain. The exception, in respect to medical opinions, is grounded upon the universal understanding that doctors make life and death decisions in reliance upon “information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records and X-rays.” (Fed Rules Evid rule 703, 1972 Advisory Comm Notes.) Information of this kind, by its nature, is inherently reliable. Where the out-of-court information is not used for the purpose of treatment, by a doctor who has the actual care of the patient, there is no such assurance of reliability.
“A report used only for testimony obviously lacks the guarantees of reliability found in a report actually relied upon for treatment decisions affecting a patient’s health.
“Not surprisingly, therefore, the case law consistently holds that a non-treating expert may not testify based on the report of another physician, where the report is not independently admitted and the other physician is not a witness at trial.” (Friedman, Need for a Testifying Physician To Rely on Reports by a Non-Testifying Physician Poses Evidentiary Problems, 73 NY St BJ 9, 28-29 [Nov./Dec. 2001].)
Where a treating doctor refers a patient to a consulting doctor for evaluation and the resulting report is used by the refer
Dr. Maloney’s report to plaintiffs counsel appears to have winnowed through what may be a great mass of material from a series of reports by treating doctors. His report quotes or paraphrases isolated comments, observations and conclusions from those reports to generate an opinion on some of the ultimate issues in the case. These include the causal connection between the fall at the ski lift and the fracture and the course of subsequent chronic pain treatment and surgical interventions. The opinion connects the injury to the fall and finds that this is the injury which has resulted in a permanent partial disability. Maloney also implicitly opines that the hardware implant, installed by one of the treating surgeons, did not cause an additional bone fracture of the femur as the result of malpractice.
Justice Friedman notes, in her New York State Bar Journal article (supra at 28) that: “the reliability of the out-of-court material is not the only factor the courts must consider in determining the permissible basis for an expert opinion. The interest of the opposing party in confronting witnesses on crucial issues in the case must also be taken into account. A compelling argument may be made that this interest is unfairly overlooked by an evidentiary rule that would permit even a treating doctor either to base an opinion about a crucial issue * * * primarily upon another doctor’s report, or to testify about the contents of the other doctor’s report when the other doctor is not subject to cross examination.”
This issue, as Justice Friedman points out, has not been expressly discussed in prior opinions but “may explain why the Borden v Brady majority opinion remains good law” (id.). Even assuming the Borden minority view ultimately prevails, which would permit an expert opinion on the ultimate issue, the circumstances of the case at bar strongly suggest that the People v Sugden exception is not broad enough to permit Dr. Maloney to express an opinion based upon selected excerpts from the records accumulated over several years by treating doctors, none of whom will be called to testify at trial and none of whom have been deposed under oath. The defendant’s confrontation
Concededly, authority may be found to condone the use of unadmitted X rays and similar out-of-court test results by a nontreating expert witness (Pegg v Shahin,
An exception broad enough to accommodate Dr. Maloney’s opinion evidence would transform our adversary system into what has been described as “trial by dossier.” The reluctance of our courts to permit that trend is seen in Brown v County of Albany (
Dr. Maloney’s expert testimony, therefore, must be limited to his own physical examination and any diagnosis/prognosis he may be able to form based upon his own findings. He may rely upon certified out-of-court X rays, bone scan or MRI reports providing such objective test results are used as part of the data and information he employed to reach his own opinion. He may not rely upon the out-of-court records, opinions or impressions of treating doctors which are not admitted in evidence under an independent exception to the rule against hearsay. These materials, we emphasize, were not used by Dr. Maloney for purposes of treatment but only for the purpose of developing opinion evidence to be used in support of plaintiffs personal injury litigation.