ADMISSIBILITY OF CERTAIN DOCTOR TESTIMONY STILL UNCERTAIN IN NEW YORK
As an injury attorney in Buffalo and Western New York that has been to many trials, the admissbility of the testimony plaintiff’s treating doctors often is an issue.
It is clear that a plaintiff’s treating physican can testify that he relied on the finding contained in the medical records of plaintiff’s other treating physicans, who are not testifying at trial, in forming his own opinions. The testimony however cannot simply be a conduit for otherwise inadmissible hearsay.
The records he relied on must have been germain to the plaintiff’s diagnosis and treatment. Further, the testifying doctor cannot just simply recite what is in those other doctors’ records. The information to be utilized at trial must be only a “link in the chain” of what the doctor considered in developing his own opinions. Further the records must be of the type that are reliable in that they are of the type typically relied upon by medical professionals in forming their opinions.
However, in State v. Fox, 79 A.D.3d 1782 (4th Dept. 2010) the Court held that “Whether evidence may become admissible solely because of its use as a basis for expert testimony remains an open question in New York” (Hinlicky, 6 NY3d at 648), inasmuch as there is a “distinction between the admissibility of an expert’s opinion and the admissibility of the information underlying it” (People v Goldstein, 6 NY3d 119, 126 , cert denied 547 US 1159 ). If that distinction were not recognized, “a party might effectively nullify the hearsay rule by making that party’s expert a `conduit for hearsay'” (id.).
Until the Court of Appeals addresses this issue head on, the courts should allow such tesimony as long a doctor does not simply form her opinions based only on the other doctors findings, i.e., a wholesale recitation and nothing else. Her testimony, for example, should be based on her own examinations, findings, MRI interpretations, range of motion readings and the like.
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