Redish v Adler

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[*1] Redish v Adler 2018 NY Slip Op 50565(U) Decided on April 17, 2018 Supreme Court, Bronx County Capella, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 17, 2018
Supreme Court, Bronx County

Keimoneia Redish, Plaintiff,




Plaintiff's Attorney:

Preston J. Douglas, Esq.

Gurfein Douglas, LLP

11 Park Place - Suite 705

New York, New York 10007


Defendants' Attorney:

Christine Rockwell, Esq.

Garbarini & Scher, PC

432 Park Ave. South, 9th Fl.

New York, New York 10016

Joseph E. Capella, J.

The following papers numbered 1 to 3 read on this motion, noticed on October 26, 2017, and duly submitted on April 9, 2018, as no. _____ on the Motion Calendar of __________.






The instant complaint is one sounding in medical malpractice and a lack of informed [*2]consent, and arises out of plaintiff's claim that she was inadequately treated for a life threatening asthma attack while she was a patient at defendant, St. Barnabas Hospital. The complaint and bill of particulars allege, inter alia, that defendants negligently managed the plaintiff's asthma and status asthmaticus,[FN1] and failed to provide or transfer her to a medical facility with Extra Corporeal Membrane Oxygenation ("ECMO") or High Frequency Oscillatory Ventilation ("HFOV"). They further allege that as a result of her under treated asthma, the plaintiff sustained brain damage, is confined to a wheelchair, and has difficulty speaking and communicating. Now, by notice of motion, the defendants, St. Barnabus, Darryl Adler, MD, Richard Stumacher, MD, and The Estate of Ronald L. Ciubotaru, MD (collectively referred to as "movants"), seek an order pursuant to Frye v United States (293 F 1013 [DC Cir 1923]), precluding the plaintiff's experts from testifying that ECMO or HFOV therapy was the standard of care for a person with plaintiff's medical conditions/symptoms and/or that its non-use constituted a deviation from accepted standard of care.

In support of the relief requested, the movants provide an affirmation from their expert, Dr. Jennifer Cunningham, who states that the use of ECMO or HFOV in the context of a patient like plaintiff suffering from status asthmaticus is not the standard of care, but would be novel, salvage therapy, and not superior to what was appropriately administered, which in this case was inhalation anesthesia. A review of Dr. Cunningham's affirmation makes it abundantly clear that she is not suggesting that these therapies in and of themselves are novel. For example, according to Dr. Cunningham, ECMO has been used since the 1970's for procedures including coronary artery bypass grafting surgery. Instead, it is the application of these therapies to status asthmaticus that she states is novel or salvage therapy. According to Dr. Cunningham, she is unaware of any controlled studies, clinical trials, medical literature, peer reviews, journal articles or similar literature that examined the risks and/or benefits of ECMO for status asthmaticus either in general or as compared to other therapies. She goes on to state that this is equally true for HFOV, and adds that there is ample literature to support her opinion that HFOV is contraindicated in patients such as the plaintiff.

The plaintiff's opposition papers takes exception with the movants' concatenation of the words "novel" and "salvage," and suggests that this was a dishonest attempt to join two different concepts. The opposition papers include an affidavit by plaintiff's expert, Dr. Henry J. Silverman, who notes that the inhalation anesthesia used by the defendants was also salvage therapy just as an ECMO would have been. As the plaintiff correctly points out, salvage therapies are those which are beyond conventional and used to save dying patients, whereas novel therapies are those which are new and untried. And Frye is only called upon to address proponents of novel (emphasis added) therapies and not salvage therapies. (293 F 1013.) Dr. Silverman also notes that annexed to the opposition papers are a variety of articles demonstrating the acceptance of ECMO, and its use for status asthmaticus dating back to the 1990s. He goes on to state that Columbia Presbyterian Hospital has been transporting patients on ECMO with asthma since 2008, and has had high success in saving these patients. He also notes that three of the defendants, Dr. Ciubotaru, Dr. Adler and Dr. Stumacher, acknowledged in their deposition transcripts that they knew the existence of an ECMO program in Manhattan, and that at least one [*3]of them admitted that if it were available, they may have been able to save the plaintiff from her brain damage.

According to Dr. Silverman, the concept of standard of care requires a doctor to provide that care which he knows has the ability to save a patient, and therefore it is not a medical defense to say that an available and proven therapy is not within the standard of care. Here, when the defendants stated that they had run out of options for the plaintiff, yet they knew ECMO, which was not novel or experimental, offered a potential chance of cure, then they were obligated to provide that treatment. With respect to HFOV, Dr. Silverman notes that it was no more experimental in 2010 than inhalation anesthesia, and more hospitals have this type of treatment than ECMO. He goes on to state that while use of HFOV would have been risky, by the defendants' own admission, they were out of options and therefore, HFOV should have been attempted to move more air in and out of the plaintiff's lungs.

The prevailing standard of care governing the conduct of medical professionals demands that doctors exercise a reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where they practice. (Pike v Hosinger, 155 NY 201 [1898].) They are charged with the duty to exercise due care, which is measured against the conduct of their peers (ie, the reasonably prudent doctor standard), and implicit in this concept is the principle that doctors must employ their best judgment in exercising their skill and knowledge. (Nestorowich v Ricotta, 97 NY2d 393 [2002].) Within the context of a medical malpractice action, as with any negligence action, the plaintiff must establish that the defendants' negligence, which in this case is the alleged departure from good and accepted medical practice, proximately caused the injury claimed. (Mortensen v Memorial Hospital, 105 AD2d 151 [1984].) Here the court is called upon to address the movants' challenge to plaintiff's expert testimony as to causation in that the suggested use of ECMO or HFOV for a patient like plaintiff suffering from status asthmaticus would have been novel and not the appropriate standard of care. Under the test enunciated in Frye, which is the standard applied in New York courts, a proponent of novel science must establish its general acceptance among scientists within the relevant discipline to justify its admission. (293 F 1013; People v Angelo, 88 NY2d 217 [1996].) This test ensures that courts do not rely upon an expert's testimony regarding a novel theory or procedure unless it has been generally accepted within the relevant scientific community as leading to reliable results, and essentially distinguishes between principles which are "demonstrable" versus "experimental."

On the other hand, as noted by Justice Saxe, since Frye entails a process of weighing the views of each side's experts, some trial courts are erroneously tempted to weigh the relative merits of each expert's testimony to determine reliability; however, the court's function is not to decide which expert's conclusion is correct. (Marsh v Smyth, 12 AD3d 307 [1st Dept 2004].) Competing expert theories as to causation or the mechanism of an injury do not warrant a Frye hearing, but entail a weighing of the evidence that falls within the domain of the jury. (Barnett v Fashakin, 85 AD3d 832 [2nd Dept 2011]; Frye v Montefiore, 70 AD3d 15 [1st Dept 2009].) To hold a hearing in this context would simply provide the defendants with an extra opportunity to cross-examine the plaintiff's expert and pinpoint perceived weaknesses. (Marsh, 12 AD3d 307.) An appropriate Frye challenge exists when the expert's theory of causation finds no objective support, and instead is based solely on the expert's own unsupported beliefs. And the limited [*4]question to address at a Frye hearing is whether the expert's opinion properly relates existing data, studies or literature to the plaintiff's situation, or whether it is connected to existing data only by the ipse dixit of the expert (General Electric v Joiner, 522 US 136 [1997]).

The movants' expert, Dr. Cunningham, concedes that ECMO and HFOV are not novel therapies, and goes on to note that ECMO has been used since the 1970s. It is the application of these therapies to status asthmaticus that she considers novel therapy. Yet plaintiff was able to provide various medical articles demonstrating the acceptance of ECMO, and its use for status asthmaticus dating back to the 1990s. And also showed that Columbia Presbyterian Hospital has been transporting asthma patients on ECMO since 2008. Unlike those situations in which an expert is proposing the use of a newly developed or novel therapy, here the plaintiff's expert proposes that the application of a well-established therapy (ie, ECMO or HFOV) to instances that appear to have a reasonable quantum of support, and that instance being patients such as plaintiff who suffer from status asthmaticus, was warranted. In the end, what we have are two experts asserting diametrically opposed positions, each relying on scientific literature to support their claims. (People v Wesley, 83 NY2d 417 [1994].) This in fact engenders a weighing of the evidence, which is outside the scope of this Court's function in performing a Frye analysis (Id), and Frye and its progeny cannot be given an overly broad reading that would remove this issue from the jury's province.

Therefore, based on the aforementioned, the instant motion is denied. The plaintiff is directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.

Dated 4/17/18


Joseph E. Capella, J.S.C. Footnotes

Footnote 1:Status Asthmaticus is a severe form of asthma attack.

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