Court of Appeals Holds Clinical Practice Guidelines Setting Forth Standards of Care Are Admissible as Demonstrative Evidence
August, 2006
The Court of Appeals recently held in Hinlicky v. Dreyfuss, 6 N.Y.3d 636, --- N.E.2d ----, 2006 WL 1148122 (N.Y., May 02, 2006), that published clinical guidelines relied upon by a physician in his practice, which would otherwise be barred as hearsay, are admissible to illustrate the doctor’s decision-making process and not for its truth to establish the standard of care.
In Hinlicky, a seventy-one year old woman underwent an endarterectomy to remove plaque buildup in her carotid artery. Although the surgery was successful, she subsequently suffered a heart attack and died. Her estate commenced an action sounding in medical malpractice and wrongful death claiming the defendant internist, surgeon and anesthesiology group should have referred her for a preoperative cardiac evaluation to ensure the decedent’s heart could withstand the surgery.
At trial, an anesthesiologist affiliated with the Defendant group was called to testify as part of Plaintiff’s case-in-chief. On cross examination, he testified without objection that he decided not to send the decedent for a preoperative cardiac evaluation after using clinical practice guidelines published in 1996 by the American Heart Association (AHA) in association with the American College of Cardiology (ACC). However, when defense counsel asked the anesthesiologist for background on the guidelines, Plaintiff’s counsel objected on hearsay grounds. After colloquy ensued, the trial judge ruled that while it is technically speaking hearsay, it fell within the professional reliability exception and its use was “merely one link in the chain of which [the witness] used to reach a conclusion.”
The AHA/ACC flow-diagram or algorithm was then admitted into evidence. As background, the professional reliability exception enables an expert witness to provide expert opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession. Thereafter, a total of seven expert witnesses were called by Plaintiff and Defendants, and while none of them disputed the reliability of the algorithm, six of the seven clashed over its significance as the standard of care. After the jury was charged without Plaintiff requesting a limiting instruction regarding the use of the guidelines, a defense verdict was rendered.
Plaintiff then appealed the trial court’s decision to admit the clinical practice guidelines into evidence pursuant to the professional reliability exception. The Appellate Division, however, unanimously affirmed the trial court’s ruling, reasoning that the guidelines were offered not for the truth of the matter asserted and not to establish a per se standard of care, but for the non-hearsay purpose of illustrating a physician’s decision-making methodology.
The issue was then brought before the Court of Appeals. The Court affirmed the ruling holding that the algorithm was properly admitted into evidence during the anesthesiologist’s testimony as demonstrative evidence of the steps he followed in clearing the decedent for surgery.
Chief Justice Judith Kaye, writing for the Court, explained that while the algorithm is an extrajudicial statement, it would only be “classic” hearsay if offered to prove the truth of the matter asserted. She pointed out, however, that defense counsel elicited testimony that the anesthesiologist used the flow-diagram as an aid to determine which patients would likely benefit from a cardiac work-up before surgery and which would not. She also highlighted Plaintiff’s failure to object to the testimony regarding the doctor’s reliance on the clinical practice guidelines, indicating it opened the door for the algorithm to be admitted into evidence, not for the truth of the matter asserted but to illustrate the decision making process.
Judge Kaye then dismissed Plaintiff’s argument that once admitted into evidence the jury would not be able to make a meaningful distinction between it being offered for its truth and offered to illustrate the decision-making process, leaving jurors open to the possibility of drawing unsupported inferences from demonstrative evidence. In dismissing this argument, Judge Kaye reasoned that the physician was a fact witness testifying about his own use of the flow-diagram and that Plaintiff never requested a limiting instruction, suggesting Plaintiff should have raised the issue at trial in order to preserve it for appeal.
Judge Kaye also rejected Plaintiff’s contention that Spensieri v. Lasky, 94 N.Y.2d 231, 723 N.E.2d 544, 701 N.Y.S.2d 689 (1999), mandated a different conclusion. She pointed out that in Spensieri the plaintiff was prohibited from offering excerpts from the Physician’s Desk Reference (PDR) as stand alone proof of the standard of care, but not barred from offering expert testimony partially based on the reliance on the PDR. Distinguishing the two cases, Judge Kaye reasoned that the algorithm was not admitted “by itself” to establish the standard of care, as was the PDR, but used to explain “one link in the chain” of the anesthesiologist’s evaluation process.
In its dictum, the Court stated that once clinical practice guidelines are admitted into evidence and a party becomes concerned that the purpose of the guidelines changes from demonstrative to substantive by its use by medical experts, an objection needs to be timely made at trial. Additionally, the Court recognized that while some jurisdictions allow otherwise inadmissible materials relied upon by an expert witness to reach the jury for non-hearsay purposes, the Court has acknowledged the need for limits on admitting the basis of an expert’s opinion to avoid providing a “conduit for hearsay.” In other words, the decision is limited to clinical practice guidelines and the professional reliability exception should not be expanded to admit chapters in medical texts or articles.
Learning Points:
Be mindful that plaintiffs will request clinical practice guidelines used by the doctor during the discovery phase. If the doctor fails to identify the reliance on guidelines and then offers same at trial, plaintiffs will likely move to preclude. Or, if plaintiffs believe clinical practice guidelines are applicable and the doctor is unfamiliar with them, plaintiffs may look to introduce these guidelines through their expert to demonstrate negligence.
Additionally, if opposing counsel elicits testimony regarding a doctor’s or expert’s reliance on documents that would otherwise be deemed inadmissible hearsay, object immediately so to help close the door on having the evidence admitted into evidence pursuant to the professional liability exception. Finally, if clinical practice guidelines are admitted into evidence, but the purpose changes from demonstrative to substantive, object immediately and request a limiting jury charge. •
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