| Lenzini v Kessler |
| 2008 NY Slip Op 01003 [48 AD3d 220] |
| February 5, 2008 |
| Appellate Division, First Department |
| Christine Lenzini et al., Appellants, v Alan A. Kessler,M.D., et al., Respondents, et al., Defendant. |
—[*1] Martin Clearwater & Bell LLP, New York City (Ellen B. Fishman of counsel), for Alan A.Kessler, M.D. and Hutson & Edersheim, M.D., P.C., respondents. Kopff, Nardelli & Dopf LLP, New York City (Martin B. Adams of counsel), for East RiverMedical Imaging, Inc., Morton Schneider, M.D. and Alison B. Haimes, M.D.,respondents.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered October 3, 2006,which denied plaintiffs' posttrial motion to set aside the jury verdict in favor of defendants,unanimously affirmed, without costs.
Although a scientific text is inadmissible as hearsay when offered for its truth or to establisha standard of care, it may be introduced to cross-examine an expert witness where it has beendemonstrated that the work is the type of material commonly relied upon in the profession andhas been deemed authoritative by such expert (Hinlicky v Dreyfuss, 6 NY3d 636 [2006]; cf. Matter of YazalinP., 256 AD2d 55 [1998]). In the subject medical malpractice trial, the court did notimprovidently exercise its discretion in authorizing the use of certain material for impeachmentpurposes as against plaintiffs' expert witnesses. Plaintiffs' expert in radiology was, in that regard,questioned about a medical text he had brought to court, made notes thereon, and clearly deemedsufficiently authoritative notwithstanding that he may not have accepted everything contained init. As for plaintiffs' expert in gynecology, he expressly recognized the reliability of the materialabout which he was cross-examined. Indeed, a physician may "not foreclose fullcross-examination by the semantic trick of announcing that he did not find the workauthoritative" where he has already relied upon the text and testified that "he agreed with muchof it" (Spiegel v Levy, 201 AD2d 378, 379 [1994], lv denied 83 NY2d 758[1994]). Moreover, the court delivered the appropriate limiting instructions.
A missing witness charge was properly delivered as to the patient's treating physicians, whereplaintiffs failed to show those individuals were either unavailable or not under their control, andtheir testimony would be either cumulative or irrelevant (see DeAngelis v New York [*2]Univ. Med.Ctr., 15 AD3d 185 [2005]). Also proper was the error-in-judgment charge, inasmuch asevidence was introduced at trial relating to the available treatment options, and the critical issuewas whether the patient's gynecologist had been negligent in electing to wait and observe hercondition rather than undertaking immediate surgery. Concur—Tom, J.P., Saxe, Friedmanand Buckley, JJ.