Dallarda v Broderick

[*1] Dallarda v Broderick 2007 NY Slip Op 51029(U) [15 Misc 3d 1138(A)] Decided on May 22, 2007 Supreme Court, Sullivan County LaBuda, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 22, 2007
Supreme Court, Sullivan County

Carl Dallarda, as Administrator of the Estate of Edna Dallarda, Plaintiff,

against

Douglas Broderick, M.D., and Diane Primavera, R.N., Respondents.



901-03



Collier & Berger, PLLC

P.O. Box 509

Ellenville, NY 12428

By: James J. Murray, Esq., of counsel

Attorney for the Plaintiff

Feldman, Kleidman & Coffey, LLP

P.O. Box A

Fishkill, NY 12524

By: Elizabeth L. Melanson, Esq., of counsel

Attorney for Respondent Dr. Broderick

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

3 Gannett Drive

White Plains, NY 10604

By; Neil S. Kornfeld, Esq., of counsel

Frank J. LaBuda, J.

The complaint in this medical malpractice action alleges that the respondents were negligent in the diagnosis and pre and post-operative treatment of the original plaintiff, now deceased, Edna Dallarda's cancerous condition resulting in significant increased risk of metastases, organ failure, pain suffering and premature death.

Summons and complaint dated April 8, 2003, in the name of the now deceased plaintiff [*2]Edna Dallarda (deceased plaintiff), was filed in Sullivan County on April 14, 2005. Said complaint was served upon respondent Dr. Broderick on June 18, 2003 and upon respondent Nurse Primavera on July 11, 2003.

Edna Dallarda, deceased plaintiff, died on January 31, 2005.

Her son, Carl Dallarda (plaintiff), was appointed Administrator of her estate on May 25, 2005. He thereafter, was substituted as plaintiff as Administrator of the Estate of Edna Dallarda on June 21, 2005.

This matter came to jury trial on May 7, 2007.

During the plaintiff's direct case, a medical doctor [FN1] was called as the plaintiff's medical expert. After being qualified, the Doctor testified, in his opinion, to a reasonable degree of medical certainty, that the respondents deviated from the accepted standards of care. This opinion was based solely on hand- written notes made by the now deceased plaintiff and forwarded to him as an enclosure with a letter from plaintiff's counsel explaining the theory of the lawsuit.

Respondent's counsels both objected to the opinion by plaintiff's expert.

On direct examination, the Doctor was not shown, nor did he testify to, any hospital, chart or document. On cross-examination, the Doctor candidly admitted that he had not received or seen any records regarding the plaintiff's surgery or care and treatment.

This Court reserved decision.

After the conclusion of plaintiff's direct case, on May 9, 2007, both of respondent's counsels moved this court to: 1. strike the opinion of plaintiff's expert and 2. dismiss the action.

This Court recessed the trial and ordered all counsel to submit written arguments by May 13, 2007. After receiving timely

written arguments, this Court granted applications to reply by May 18, 2007. Having received timely replies by each party this matter is marked fully submitted on May 21, 2007.

Respondents argue that the plaintiff failed to establish a prima facie case of medical malpractice and the action must be dismissed.

Respondents argue that this Court must strike the opinion testimony by plaintiff's expert because it is inadmissible, as a matter of law, as not based upon a proper foundation.

In short, respondents argue that the four prong test for medical opinion to be admissible [*3]is settled law and plaintiff clearly failed to establish any of the prongs, thereby rendering the opinion inadmissible. See, Wagman v Bradshaw, infra.

The respondents also argue that, arguendo, even if plaintiff's expert testimony was admissible, it failed to establish a causal connection between the alleged substandard level of care and the plaintiff's injuries.

Plaintiff's expert testified that he based his opinion only on written notes made by the plaintiff to her attorney, and forwarded to the expert, along with a letter from the plaintiff's attorney.[FN2]

Neither the now deceased plaintiff [FN3] nor her attorney are medically trained personnel and neither has the credentials or background to offer medical testimony.

Plaintiff's Doctor also testified that he never saw the deceased plaintiff personally, never spoke to deceased plaintiff and did not review any hospital or other medical records of the deceased plaintiff.

Thus, plaintiff's expert offered his opinion testimony based solely on inadmissible hearsay.

Plaintiff's attorney incredulously argues that there are no records save the hand-written notes of the plaintiff herself and that the real issue herein is whether the standard of care of respondents led to the pain and suffering and premature death of the plaintiff from cancer.[FN4]

The plaintiff is in error in both arguments.

First, the issue herein is whether the plaintiff's expert's opinion is admissible.

Second, there are hospital and medical records regarding the plaintiff's illness but the medical expert was not asked to review any of them before or during trial.

Third, to be admissible medical opinion evidence must be based upon one of the following; [*4]

1. personal knowledge of the facts upon which the opinion rests,

2. if not personal knowledge, the opinion must be based upon facts and material in evidence, either real or testimonial,

3. material not in evidence, provided that the out of court material is derived from a person subject to full cross-examination,

4. material not in evidence, provided that the out of court material is the kind that is "professionally reliable".

Wagman v Bradshaw, 292 AD2d 84 (2nd Dept., 2002).

Plaintiff's expert opinion is not based upon any of the above and is inadmissible.

An expert's opinion cannot be based upon contingent, speculative or unreliable facts and materials. Kirker v Nicolla,

256 AD2d 865 (3rd Dept., 1998). This Court finds that the deceased plaintiff's notes and plaintiff's attorney's letter are not reliable material for a medical opinion.

Last, even if expert opinion is based upon proper sources, there must be a showing that deviation from accepted medical standards was the proximate cause of plaintiff's injuries. Postlethwaite v United Health Services Hospitals, Inc., 5 AD3rd 892(3rd Dept., 2004).

There has been no admissible evidence or testimony herein that the alleged deviation from acceptable standard of care was the causal connection to the injuries suffered by the deceased plaintiff.

Based upon the above, it is

ORDERED, that plaintiff's expert's testimony is inadmissible and is stricken from the record, and it is further

ORDERED, that plaintiff has failed to establish a prima facie case of medical malpractice against either respondent and plaintiff's complaint is dismissed, and it is further

ORDERED, that this Court directs a verdict to the respondent's and this matter is dismissed, and it is further

ORDERED, that the trial jury shall be dismissed forthwith. [*5]

This shall constitute the Decision and Order of this Court.

Dated: May 22, 2007

Monticello, NY

__________________________________

Hon. Frank J. LaBuda

Acting Supreme Court Justice Footnotes

Footnote 1: Dr. Raymond Basri, M.D. of Middletown, New York who is a well qualified physician.

Footnote 2:Neither the "notes" nor the attorney's letter were introduced at trial.

Footnote 3:The now deceased plaintiff's son, who was substituted as plaintiff after the death of his mother, is a licensed attorney in New Jersey specializing in dental malpractice.

Footnote 4:Plaintiff's son did not bring a wrongful death action against the treating hospital, Surgeon or Nurse because the statute of limitations had expired. Instead he chose to continue the within medical malpractice action as Administrator of his mother's estate.