Marsh v. Smyth

• Decision Date: 30 November 2004
• Docket Number: 3009A.,3009.
• Citation: 12 A.D.3d 307,2004 NY Slip Op 08789,785 N.Y.S.2d 440
• Parties: GEORGIA MARSH, Appellant, v. JAMES SMYTH, M.D., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

12 A.D.3d 307

785 N.Y.S.2d 440

2004 NY Slip Op 08789

GEORGIA MARSH, Appellant, v. JAMES SMYTH, M.D., et al., Respondents.

3009.

3009A.

Appellate Division of the Supreme Court of the State of New York, First Department.

November 30, 2004.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered December 10, 2002, which denied plaintiff's motion to charge the jurors on the doctrine of res ipsa loquitur, and order, same court and Justice, entered December 27, 2002, which granted defendants' motion to preclude the testimony of plaintiff's experts and thereupon dismissed the complaint, reversed, on the law, without costs, the denial of plaintiff's motion vacated, defendants' motion denied, the complaint reinstated, and the matter remanded for trial.

In December 1995, plaintiff underwent a hysterectomy to treat her ovarian cancer, following which she complained of severe pain and weakness in the right arm and shoulder, which was thereafter diagnosed as long thoracic nerve palsy. Plaintiff commenced this medical malpractice action alleging that the subject palsy was caused by the anesthesia team's improper hyperabduction of her arm for an extended period while she was under general anesthesia.

Supreme Court erred in granting defendants' pretrial motion to preclude the testimony of plaintiff's two medical experts, on the ground that their theories concerning the positioning of the arm during the surgery were not generally accepted in the medical field (see Frye v United States, 293 F 1013 [DC Cir 1923]; People v Wernick, 89 NY2d 111, 115-116 [1996]). Supreme Court went beyond the limited role of a Frye hearing, which is to determine whether the experts' deductions are based on principles that are sufficiently established to have gained general acceptance as reliable (see People v Wesley, 83 NY2d 417, 422-423 [1994]), and intruded upon the jury's realm of weighing the evidence (see id. at 426). The experts' testimony, and the supporting medical literature, satisfied the Frye standard, and a jury should be permitted to hear the testimony and consider the doctrine of res ipsa loquitur (see States v Lourdes Hosp., 100 NY2d 208 [2003] [jury should hear expert testimony to assess res ipsa loquitur claim concerning the allegedly negligent hyperabduction of plaintiff's right arm during removal of ovarian cyst]).

Concur — Buckley, P.J., Mazzarelli, Ellerin and Marlow, JJ.

Saxe, J., concurs in a separate memorandum as follows:

This appeal concerns the proper use of the pretrial Frye procedure when challenged expert testimony concerns a theory of causation to be offered in a medical malpractice case. I agree with the majority that the motion court erred in precluding the testimony of plaintiff's two experts. However, I believe that the motion court's misapprehension of its proper function in such a Frye hearing may have resulted in part from its application of the Frye test in a situation in which the standard language defining the Frye test fits awkwardly at best. Furthermore, the initial question of whether to employ the Frye test here, as well as what standard to use for it, should have been more closely examined. The law does not support subjecting experts' views to pretrial hearings in every situation to ensure that they are based on sufficiently established principles; such a hearing should be held only if the basis for the expert's conclusions is novel. I believe that discussion of these points is important to assist trial judges who are confronted with ever-increasing numbers of defense challenges to testimony by plaintiffs' medical experts.

FACTS

On December 11, 1995, a hysterectomy was performed on plaintiff Georgia Marsh at defendant New York Downtown Hospital for the purpose of treating her ovarian cancer. The surgery began at approximately 1:15 p.m. and concluded between 6:45 and 6:55 p.m. The surgery was performed, as is typical for this type of surgery, with the patient in the Trendelenburg position, with her upper body and head lower than her lower torso. Her right arm was abducted out onto a padded armboard, with an intravenous anesthesia line running into her hand.

Plaintiff emerged from the surgery with severe pain and weakness of the right arm and shoulder, which condition persisted. Several orthopedists and neurologists diagnosed the injury as long thoracic nerve palsy and expressed the view that her condition is due to a stretch injury or a compression of the nerve caused by the position of her arm during surgery. She then commenced this medical malpractice action. She asserts that the anesthesia team, consisting of anesthesiologist Dr. James Smyth and nurse anesthetist Douglas Chisolm, must have proximately caused the injury by improperly positioning her arm in a hyperabducted state for an extended period while she was under general anesthesia.

In preparation for trial, plaintiff served her CPLR 3101 (d) expert disclosure, identifying Dr. Eric Munoz and Dr. Michael Weintraub as the medical experts who would testify on her behalf at trial. Defendant Smyth then moved to preclude the testimony of Drs. Munoz and Weintraub on the ground that their theories were not generally accepted in the medical field or, alternatively, for a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]) to determine whether these witnesses' planned testimony was based upon a scientific principle or procedure which is sufficiently established to have gained general acceptance in the particular field in which it belongs. New York Downtown Hospital joined in the motion. Plaintiff then moved for an order allowing the case to proceed to trial on the doctrine of res ipsa loquitur, since she had sustained a neurological injury to her right arm and shoulder while under general anesthesia.

The motion court determined that a Frye hearing was necessary. At the conclusion of the hearing, the court precluded plaintiff from calling Drs. Munoz and Weintraub as expert witnesses, reasoning that the bulk of the evidence showed that plaintiff's theory of causation is not generally accepted in the medical community. And, further finding the application of the doctrine of res ipsa loquitur unwarranted based upon the submitted literature, the court dismissed the complaint.

In particular, the IAS court expressed the view that "none of the [medical] literature referred to by either Dr. Weintraub or Dr. Munoz uses the term hyperabduction but instead . . . uses terms such as recumbency, recumbency on an operating table, excessive arm abduction and positioning." Relying on the assertion of one of defendants' experts that hyperabduction is not the same as excessive abduction, the court reasoned that the absence of the term hyperabduction in the articles completely invalidated plaintiff's experts' reliance on them. Further, while the court recognized that one of the articles relied upon by plaintiff actually mentions hyperabduction during surgery as causing injury to the long thoracic nerve, it went on to ignore that 1947 article. Apparently, the court's disregard of that and other submitted articles was because it accepted defendants' contention that most of the medical literature presented by the plaintiff was irrelevant in that it concerned the brachial plexus, which, the court concluded based upon defendants' submissions and contrary to plaintiff's experts, was distinct and separate from the long thoracic nerve. In other words, finding a disagreement as to whether the long thoracic nerve ought to be considered part of the brachial plexus, the motion court implicitly found that the distinction made by defendants' experts between the two was correct, rendering irrelevant most of the articles relied upon by plaintiff. The court also rejected the applicability of certain of the articles because they considered circumstances where the position of the patient's arm and torso did not exactly mirror that of plaintiff here, and of others which reported on examinations performed on corpses.

DISCUSSION

In precluding the testimony of plaintiff's experts, the motion court went far beyond its limited task in a Frye hearing, to the extent those principles apply in these circumstances.

The important purpose of the Frye test is to ensure that courts do not rely upon an expert's testimony regarding a novel procedure, methodology or theory unless it has been "generally accepted" within the relevant scientific community as leading to reliable results (see People v Angelo, 88 NY2d 217, 223 [1996]). The focus of the Frye test is to distinguish between scientific principles which are "demonstrable" and those which are "experimental" (see People v Wesley, 83 NY2d 417, 422 [1994], quoting Frye, 293 F at 1014). The Wesley court went on to emphasize that "the particular procedure need not be `unanimously indorsed' by the scientific community but must be `generally acceptable as reliable'" (83 NY2d at 423, quoting People v Middleton, 54 NY2d 42, 49 [1981]).

The Frye test, used in a classic context, considers whether the court should allow testimony involving a recently introduced process such as DNA testing (see People v Wesley, supra), polygraph tests (see People v Angelo, 88 NY2d 217 [1996], supra), or posthypnotic recollection (see People v Hughes, 59 NY2d 523 [1983]), by asking whether the reliability of the test or process is "generally accepted" by those in a position to know. The test has also been applied equally well where scientists and social scientists have proposed the application of newly posited theories, such as rape trauma syndrome (see People v Taylor, 75 NY2d 277 [1990]), neonaticide syndrome (see People v Wernick, 89 NY2d 111 [1996]), or multiple chemical sensitivity syndrome (see Oppenheim v United Charities, 266 AD2d 116 [1999]).

In these contexts, in order to find evidence of the newly minted process or newly posited theory admissible, use of the Frye test to determine "general acceptance" helps courts avoid...