For plaintiff to prevail in a medical malpractice action, he or she must establish two elements: 1) That the defendant departed from good and accepted practice in its treatment of the plaintiff, and: 2) That the departure was a proximate cause, or substantial factor in causing the injury claimed. These two elements will have to be answered by a jury in a series of questions contained in a verdict sheet with appropriate instructions given by the trial judge. There are those cases however, in which the defendants will challenge one or both elements in a motion for summary judgment on the grounds that the complaint fails to state a cause of action as to either a “departure from good and accepted practice”, or, that the “departure” if it existed at all, was not the “proximate cause” of the injury. As for the second element, “proximate cause” (or “causation”), the defendant can challenge plaintiff’s “causation” issue by offering affidavits from its own experts that no “causation” exists, or in the alternative, by seeking a Frye hearing for the purpose of presenting evidence that plaintiff’s expert’s statement on the issue of “proximate cause” is not generally accepted within the medical community, or stated another way, that it is nothing more than “junk science”.
These issues were decided by the Appellate Division, First Department, in Frye v. Montefiore Medical Center and published in the New York Law Journal on September 25, 2012.
In the Frye case (no relation to a Frye hearing), the natural guardian of an infant, now 12, brought an action against a hospital and a number of doctors claiming that the defendants at child birth 12 years earlier, had failed to diagnose and treat a serious condition described as “occipital encephalocele”, which originates from an anatomical failure of the neural tube. The defendants’ defended on the ground that the infant’s condition had already developed prior to coming under their care.
The threshold issue therefore was whether the condition developed prior to, or after the infant came under the care and treatment of the defendant doctors.
In its medical expert’s exchange, the plaintiff submitted proof through its own expert that the “departures” were the “proximate cause” of the infant’s unfortunate condition. In support of his conclusion, he relied upon a series of medical articles that he claimed supported his opinion which was rendered with a reasonable degree of medical certainty.
The defendant hospital and doctors attacked the conclusions reached by the plaintiff’s medical expert and offered affidavits from each of the authors relied upon by the plaintiff’s expert, debunking the opinions reached by him, and stating that he misinterpreted their published articles. One such affidavit even went so far as to state, “This” (the plaintiff’s expert’s conclusions on proximate cause) was “patently false” and “not supported by my article, or any other medical literature”.
In its decision, the Appellate Division concluded that, “none of plaintiff’s theories of causation is generally accepted in the relevant medical or scientific community”, and affirmed the court below (Supreme Court, Bronx County, Justice Green), in granting summary judgment to the defendants, thus dismissing the complaint.
The unfortunate result for the infant plaintiff is that the Appellate Division decision is probably the “end of the line” since it was reached unanimously by four Appellate Division Justices, thus removing an appeal as a matter of right, with the strong likelihood that the Court of Appeals (New York State’s highest court) would deny an application for leave to appeal.
The lesson to be learned is that the plaintiff’s medical expert must conduct a thorough review of the relevant medical literature on the precise medical causation issue to make certain that what he states in his affidavit is supported and generally accepted within the medical community. If the affidavit falls short and there is no genuine issue of fact addressing proximate cause, as in the Rivera case, the court will in all probability grant summary judgment, a result most fatal to the plaintiff.