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Failure to Instruct Jury that Medical Practice Guidelines Did Not Set Forth the Applicable Standard of Care Required Reversal

The case turned on whether the defendant failed to recommend and perform a timely colonoscopy (the plaintiff, who had a history of colon polyps, contracted colon cancer).  At trial the defendant doctor was allowed to introduce in evidence guidelines published by the American Gastroenterological Association which included the recommended frequency of colonoscopies.  The plaintiff objected and requested a limiting instruction informing the jury that the guidelines “did not set forth the standards of care with regard to the diagnosis and treatment of plaintiff’s colon cancer.” The trial court gave a cursory limiting instruction at the time the guidelines were admitted, and told the jury another instruction would be forthcoming.  The trial court subsequently declined to give any further instructions on the issue.  In reversing the judgment for the defendant and ordering a new trial, the First Department wrote:

The court erred in failing to give the instruction that plaintiff requested. Although the trial court’s instruction informed the jury that it was to make its determination based on “all the evidence,” this instruction was not sufficient to guide the jury on how to apply the Guidelines to the facts before it. The court’s instruction as rendered failed to make clear to the jury that the Guidelines were simply recommendations regarding treatment, and thus, that compliance with the Guidelines did not, in and of itself, constitute good and accepted medical practice … . The trial court should have given the jury an instruction specifically stating that the Guidelines were not the same as standards of care and that the jury was to make its determination based on the particular circumstances of the case, not on the Guidelines alone. Introducing the Guidelines into evidence without the appropriate limiting instruction allowed the jury to infer that a physician need not exercise professional judgment with regard to individual patients, but could simply abide by the recommendations promulgated in the Guidelines.  Hall v Kiyici, 2013 NY Slip Op 01616, 9067, 23531/05, 1st Dept. 3-14-13

 

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Medical Malpractice—Expert Opinion Can Be Based Entirely on Experience.

In affirming the denial of defendants’ motion for summary judgment, the First Department noted that an expert’s affidavit can be sufficient to raise a triable issue of fact even where the opinion is based entirely on the expert’s professional experience: “While an expert affidavit cannot be speculative, there is no threshold requirement in an ordinary case, not involving a novel scientific theory, that a medical opinion regarding deviation be based upon medical literature, studies, or professional group rules in order for it to be considered. It can be based upon personal knowledge acquired through professional experience …”.  Mitrovic v Silverman, 9282, 304369/09, First Dept. 3-7-13

 

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Hospital Generally Not Liable for Negligence of Private Attending Physician.

“ ‘[I]n general, a hospital cannot be held vicariously liable for the negligence of a private attending physician’ … . Further, a hospital cannot be held concurrently liable with such a physician unless its employees commit independent acts of negligence or the attending physician’s orders are contraindicated by normal practice…’ “.  Aronov v Soukkary, 2012-00155, Index No 2061/09, Second Dept. 3-6-13

 

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Expert Opinion Must Be Based On Facts in Record or Personally Known.

“A written report prepared by a nontestifying doctor interpreting the results of a medical test is not admissible into evidence.  …[O]pinion evidence must be based on facts in the record or personally known to the witness …”  D’Andria vs Pesce, 2011-03506, Index No. 16320/02 Second Dept. 2-20-13

 

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Damages for Worry About Baby’s Health Not Recognized in New York.

The Second Department held that plaintiff could not recover for purely emotional damages.  The complaint alleged plaintiff’s doctor knew plaintiff was pregnant, but allowed her to undergo a CT-scan without informing her of the pregnancy. Plaintiff sought damages for “the emotional distress arising from her fear that the CT-scan might have harmed her unborn child.”  The Second Department determined defendant’s motion to dismiss the complaint should have been granted because “[n]o such claim is recognized under New York law…”. Nadal v Jaramillo, 2012-04006, Index No. 30748/08 Second Dept.1-23-13

 

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Medical Malpractice Against Hospital, No Need to Name Individual Doctors.

In a medical malpractice action, where the plaintiff has a respondeat superior claim against a hospital based on the actions of nonparty physicians, the failure to name the individual doctors upon whom the claim is based within the applicable statute of limitations period does not compel dismissal of the vicarious liability claim against the hospital.  Parilla v Buccellato, et al, 2011-09045, Index No. 500001/08 Second Dept. 1-9-13

 

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