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No Shortcuts for Plaintiff’s Attorneys in the Fourth Department

By Justin L. Hendricks, Esq.


There is no question that trials are expensive; particularly, when doctors are involved. However, the Fourth Department recently held firm that one corner that may not be cut in hopes of curtailing costs is any attempt by a plaintiff’s attorney to submit into evidence the subjective interpretations found within medical records by non-testifying healthcare professionals. Following a jury verdict for the defense that was achieved by Managing Partner Patrick S. Kenney, Esq., the plaintiff appealed to the Fourth Department, in part, on these grounds. Associate Justin L. Hendricks, Esq., wrote and argued against the appeal, which ultimately upheld the jury’s verdict. In Cicco v. Durolek, 171 A.D.3d 1477 (4th Dept. 2019), the Fourth Department affirmed the trial Court’s preclusion of the plaintiff from introducing various medical records and testimony pertaining to the opinions of certain non-testifying doctors. The Fourth Department grounded its holding, in part, upon the Second Department’s analysis on Wagman v. Bradshaw, 292 A.D.2d 84 (2d Dept. 2002) [and its posterity, such as the more recent decision on Menses v. Riggs, 138 A.D.3d 700 (2d Dept. 2016) (holding same)]. In Wagman, the Appellate Division was particularly focused on the dangers that are inherent should a trial Court allow “the receipt in evidence of the contents of a non-testifying healthcare professional's written report, interpreting a film produced as the result of a medical test,” which would “violate" the best evidence rule. The best evidence rule is intended to eliminate or reduce the specter of deceit or perjury, potential inaccuracies attendant to human recall, or errors in crafting or recording a writing. The rule clearly bars a healthcare provider's written report which interprets the results of a medical test from receipt in evidence.” Wagman, 292 A.D.2d at 88. In short, plaintiffs are in no way precluded from entering into evidence the results of diagnostic tests; however, Cicco affirms the requirement that the films be produced to the Court and the plaintiff proffer a witness who is competent to interpret same for the jury.

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