New York Trial Court Holds That Administrative Findings are Admissible Evidence in Medical Malpractice Trials
September, 2005
In Baragano v. Vaynshelbaum, N.Y. Supreme Court, N.Y. County, 6/30/05 N.Y.L.J. 22 (col. 1), Plaintiff underwent a routine mammogram on January 8, 2001. Defendant interpreted plaintiff’s films and allegedly did not order any further diagnostic tests. In September, 2002, plaintiff underwent another mammogram, this time at a different facility, the findings in the right breast were suspicious and a core biopsy confirmed cancer. A partial mastectomy and re-excision were subsequently performed and confirmed that the cancer had metastasized to plaintiff’s lymph nodes. In June, 2003, plaintiff commenced an action against defendant alleging that defendant “incorrectly interpreted her mammogram films and failed to perform any further diagnostic testing, which were clearly warranted due to the asymmetry of plaintiff’s breasts on the mammogram films.”
During the course of litigation, plaintiff learned that the New York State Department of Health undertook a quality assurance review of mammogram films that defendant had interpreted. A press release issued by the Commissioner of the Department of Health and available on the internet stated that on November 5, 2003, the Department of Health announced that “women who had their most recent mammogram at defendants’ PC should immediately be rescreened.” Rescreening was deemed necessary because the independent reviews by the Department of Health and U.S. Food and Drug Administration had recently been conducted at the facility, etc.
New York law firmly establishes that evidence “is relevant if it has any tendency and reason to prove that existence of any material fact. It is relevant, moreover if it makes determination of the action more probable or less probable than it would be without the evidence.” Not all relevant evidence is admissible as of right, however. Even where technically relevant evidence is admissible it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury. People v. Scarola, 71 N.Y.2d 769 (1988); Richardson, Evidence §4-101 (Prince 11th ed.). Trial courts have broad discretion in ruling on the admission of evidence. Messenger v. The Mount Sinai Medical Center, 15 A.D.3d 189 (1st Dep't 2005).
Defendant argued that any and all administrative findings by the Department of Health, OPMC and the FDA were entirely irrelevant and should automatically be excluded because they did not particularly relate to plaintiff or the exact time period in which she was treated by defendant. The trial court disagreed with defendant.
New York courts have authorized submission into evidence of OPMC and other administrative findings provided, among other things, that the information is relevant to the issues being litigated. Relevant, however, is not the sole consideration. Courts must weigh the probative value of evidence against the potential prejudice that will inure if it were admitted. In cases in which administrative findings have been made as a result of an investigation into the very conduct that is the subject of a malpractice suit, New York courts have held that the findings are admissible because of their significant probative value. Cramer v. Benedictine Hospital, 190 Misc.2d 191 (Sup. Ct. Ulster Cty. 2002).
Additionally, courts have discretion to permit a party to ask its opponent’s medical expert about suspensions from the practice of medicine. Allonso v. Powers, 220 A.D.2d 311 (1st Dep’t 1995). The application of a different rule when a party qualifies as an expert would paint an inaccurate picture for the jury and may result in an injustice. The conclusion that these administrative findings are altogether irrelevant defied common sense, according to the trial court. The findings are highly probative of the quality of defendant’s mammography at the relevant time because they allegedly concern the general quality of services that defendant rendered a few months after plaintiff’s treatment. The restriction on defendant’s practice of medicine, moreover, is unquestionably relevant to his qualifications and is therefore very valuable in assessing the creditability of his testimony, according to Judge Bransten.
Judge Bransten denied defendant’s motion to preclude this information. The court did not address whether any findings or reports that are ultimately offered into evidence are hearsay and did not analyze exactly what redactions, if any, may be warranted. Further, the court did not decide whether any administrative findings will be admitted if defendant does not testify as a witness called by plaintiff. Those determinations are made by the trial judge after closely examining the actual reports and based upon the testimony at the time of trial.
Learning Point:
According to Baragano, the administrative findings of the OPMC, the Department of Health and the FDA are relevant and discoverable in medical malpractice matters. However, the admissibility of such findings at the time of trial is a question for the trial judge. New York has open discovery as to medical malpractice matters and Judge Bransten, in a case that helps plaintiffs' attorneys, allowed the administrative findings of the Department of Health, OPMC and the FDA as discoverable in medical malpractice matters. •
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