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SUPREME COURT ERRONEOUSLY PRECLUDED PLAINTIFF’S TREATING PHYSICIAN’S TESTIMONY AND THE ADMISSION OF MEDICAL RECORDS IN THIS TRAFFIC ACCIDENT CASE; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to set aside the defense verdict in this traffic accident case should have been granted. The trial court had erroneously precluded some of the testimony of one of plaintiff’s treating physicians and the admission of another treating physician’s medical records. The defendant had waived any objection to the records by failing to object after service of plaintiff’s notice of intention to enter the documents:

At the trial on the issue of damages, the plaintiff called one of her treating physicians, Irving Friedman, as a witness. The Supreme Court erred in granting the defendant’s application to preclude Friedman’s testimony concerning the cervical and thoracic regions of the plaintiff’s spine based upon a conceded error Friedman made wherein he misidentified the MRI of the plaintiff’s spine … . Under the circumstances of this case, any defects in Friedman’s opinions or the foundations on which those opinions are based “should go to the weight to be accorded that evidence by the trier of fact, not to its admissibility in the first instance” … .

In addition, the Supreme Court erred in precluding Friedman’s testimony regarding future treatment and possible need for future surgery, as Friedman had addressed these issues in his medical reports … .

… [T]he Supreme Court erred in precluding the admission of the medical records of another of the plaintiff’s treating physicians, Rubin Ingber, under the business records exception to the hearsay rule. The defendant waived his right to any objection to the admission of the records as business records, as he failed to timely object after having been served with the plaintiff’s notice of her intention to enter the documents into evidence pursuant to CPLR 3122- … . Benguigui v Racer, 2021 NY Slip Op 05318, Second Dept 10-6-21

 

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