Download LOUCKS v. THE STATE OF NEW YORK, #2001-001

LOUCKS v. THE STATE OF NEW YORK, #2001-001-517, Claim No. 95857
Synopsis
The Court awards damages for Ingersoll’s pain and suffering as a result of the temporary
side effects of anti-TB therapy in the amount of $120,000; and sets interest on this award at the
presumptively reasonable statutory rate of 9 %.
Case Information
UID:
2001-001-517
Claimant(s):
DONNA M. LOUCKS, as Executrix of the estate of AUDREY I.
INGERSOLL, deceased1
LOUCKS
Claimant short name:
Footnote (claimant name) :
Defendant(s):
Audrey I. Ingersoll died on August 2, 2000, and her daughter
Donna M. Loucks was subsequently appointed executrix of her
estate. The Court sua sponte has amended the claim’s caption
accordingly.
THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
95857
Motion number(s):
Cross-motion number(s):
Judge:
Susan Phillips Read
Claimant’s attorney:
Cote and Limpert
By: Kevin P. Kuehner, Esq., Of Counsel
Hon. Eliot Spitzer, NYS Attorney General
By: Belinda A. Wagner, Esq., Assistant Attorney General, Of
Counsel
Defendant’s attorney:
Third-party defendant’s attorney:
Signature date:
June 4, 2001
City:
Albany
Comments:
1.Audrey
I. Ingersoll died on August 2, 2000, and her daughter Donna M. Loucks was
subsequently appointed executrix of her estate. The Court sua sponte has amended the claim’s
caption accordingly.
Official citation:
Appellate results:
See also (multicaptioned case)
Decision
Complaining of asthmatic bronchitis and night sweats, in March 1995 Audrey I. Ingersoll (“Ingersoll”)
visited her family doctor, who took a series of three sputum samples, which were sent to the New York State
Department of Health, Wadsworth Center for Laboratories and Research for analysis. An unexplained mix-up in
the laboratory caused the mislabeling of the culture of one of these samples--which tested positive for a multi-drug
resistant strain of tuberculosis (“TB”)--as Ingersoll’s. When this positive result was reported to Ingersoll’s family
doctor, he immediately prescribed anti-TB drugs for her. After Ingersoll began drug treatment on April 21, 1995,
she experienced various adverse side effects.
Ingersoll, who had an extensive history of heart disease, lost consciousness in July 1995 and was admitted
to the University Hospital at the SUNY Health Science Center at Syracuse (“the hospital”) for diagnosis and
treatment. During the course of this hospitalization, Ingersoll came under the care of Dr. Sally Klemens (“Dr.
Klemens”), a specialist in treating infectious diseases, who concluded that Ingersoll did not, in fact, have TB. By
the time Ingersoll was discharged from the hospital on August 3, 1995, her anti-TB drug therapy had been
discontinued.
In a decision dated September 22 and filed September 30, 1999, the Hon. James P. King found
defendant State of New York (“defendant” or “the State”) liable for negligently mislabeling the laboratory sample,
which proximately caused injuries to Ingersoll when she received unnecessary anti-TB drug therapy as a result. An
interlocutory judgment was thereafter entered in her favor on October 7, 1999. The trial on damages took place in
Albany, New York on April 5, 2000.
I. Ingersoll’s 1995 Hospitalization and her Visits to the Hospital Clinic in 1995 and 1996 as
an
Outpatient
A. Ingersoll’s hospitalization from July 19 to August 3, 1995
On July 19, 1995, Ingersoll, who was 69 years old at the time, suddenly lost consciousness and was
subsequently admitted to the hospital with a diagnosis of syncope
(Exh. 1-000013; D 23; L 15-16).2 She had an extensive history of coronary artery disease and congestive heart
failure, and the physicians at the hospital were initially concerned that she might have suffered another heart attack
(Exh.1-000000, 000007, 000013). The admission notes of the physicians or other medical professionals who
examined Ingersoll on July 19, 1995 (Exh.1-000007-000019) disclose that (1) in addition to various medications
apparently related to her heart condition, she was then taking pyrazinamide (PZA), ofloxacin (Floxin) and rifabutin
(Mycobutin) to combat her presumed multi-drug resistant TB infection (Exh. 1-000003, 000014); (2) the rifabutin
had been added to her anti-TB drug therapy about a week or so before her admission (Exh. 1-000016); (3) she had
received intramuscular injections of streptomycin as part of her anti-TB drug therapy for approximately two months
until these injections were discontinued earlier in July 1995 (Exh. 1-000010, 000014); and (4) upon her admission to
the hospital, she complained of nausea, vomiting, weight loss and muscle pain, which she attributed to the anti-TB
drug therapy (Exh. 1-000010, 000014, 000016); denied vertigo (Exh. 1-000011); and did not mention hearing loss
(Exh.1-00007-000019).3 Ingersoll’s admitting and attending doctor, Dr. John C. Schwab (“Dr. Schwab”), indicated
Numbers preceded by the letter “D” refer to the corresponding page in the transcript of the
damages trial; numbers preceded by the letter “L” refer to the corresponding page in the
transcript of the liability trial.
2.
3.
The admitting notes include the following comments obviously related by Ingersoll on July 19,
1995 to the different physicians or other health care professionals who examined her at the
hospital: (1) “It seems patient was feeling weak since--at least--2 months, started to have nausea
and vomiting few weeks ago while on anti-TB medication. She also started to feel muscle pain
especially after addition of Mycobutin. This morning she felt awfully weak and had episode of
in his initial assessment that the etiology of her syncope, while unclear, was more likely related to her cardiac
disease than her multi-drug resistant TB therapy, which was seemingly controlling the disease but causing Ingersoll
to experience side effects of anorexia and nausea (Exh. 1-000019).
The consulting cardiologist who examined Ingersoll on July 20, 1995 advised Dr. Schwab that in light of
her “severe LV [left ventricle] dysfxn [dysfunction] [increased] ectopy on tele[meter],4 the most likely cause [of
Ingersoll’s syncope] is a ventricular arrhythmia. Would con’t [continue] to monitor. Her LV dysfxn is too severe
to warrant cath[erization] & revascularization so she will need to be managed medically . . . we may decide to place
her on empiric Amiodarone therapy” (Exh. 1-000025).
Dr. Schwab in his attending note dated July 21, 1995 remarked that Ingersoll’s “LFTs” [i.e., liver function
tests, which monitor levels of liver enzymes] were elevated. In addition, he noted that her nausea and vomiting,
which had improved, might be secondary to her TB therapy; however, because she had few therapeutic alternatives,
he preferred to continue with her present TB treatment and repeat LFTs on July 24, 1995 (Exh. 1-000027).
On July 21, 1995, the consulting cardiologist recommended treating Ingersoll with amiodarone at 400 mg
t.i.d. [three times a day] for seven days and then adjusting the dosage, noting that “[i]f Amio[darone] fails then we
should consider EPS [electrophysiological] evaluation [with] ? [possible] AICD [Automatic Implanted Cardiac
Defibrillator]”5 (Exh. 1-000028). The attending cardiologist that same day observed that the “best bet” to explain
Ingersoll’s syncope was a ventricular arrhythmia; furthermore, “no easy Rx [prescription] can be done--device
implantation is a big step--will try amiodarone--doesn’t seem to effect drug levels of her current Rx for multiple
drug resistant TB--has abnormal liver function test and amio can make these worse--need to monitor LFT” (Exh.
1-000029).
In his attending note dated July 22, 1995, Dr. Schwab states that Ingersoll was “started on Amiodarone
today. Pt somewhat confused . . . about meds. She is supposed to be on ofloxacin
(Floxin) . . . in addition to PZA & rifabutin [;] she has been refusing it thinking that it was recently d/c
[discontinued]--streptomycin and ethionamide (Trecator) were d/c. Explained this to patient and she agrees to take
3 drug therapy for MDR [multi-drug resistant] pulmonary TB” (Exh. 1-000031, see also, Exh. 1-000113). Dr.
Schwab also noted the discontinuance of Ingersoll's respiratory isolation at the hospital, which occurred during the
evening of July 21, 1995 (id.; see also, Exh. 1-000028, 000084; D 54-55).
A cardiology progress note dated July 23, 1995 indicates that Ingersoll was “on Amio loading at 400 mgs
PO [by mouth] TID [three times a day]” and was “[t]olerating Amio well;” however, “pt has abnormal baseline
LFTs which appear to be worsening. This was noted pre-amio load. Amiodarone can also worsen LFTS,” which
led to a recommendation for “daily LFTS” (Exh. 1-000033). In other words, Ingersoll was tolerating the initial
high-dose administration (i.e., loading) of amiodarone well, but her high and worsening (i.e., rising) LFTs caused
concern about potential liver injury from her medications.
In his attending note dated July 24, 1995, Dr. Schwab observed that Ingersoll had experienced “nausea and
vomiting. She remembers sitting at the table doing puzzle and woke up after that to find herself
lying under the table” (Exh. 1-000010); (2) “The patient has been having anorexia, nausea, and
vomiting for 3 months now after starting intake of medication for [TB] . . . The meds are PZA,
ofloxacin, and for 2 weeks now, rifabutin. Aside from these symptoms she was apparently well
until this morning, when she woke up feeling nauseated. She was doing a jigsaw puzzle when
she suddenly lost consciousness, which she regained a few minutes later. This led to present
admission” (Exh. 1-000014); (3) “The patient was diagnosed with active TB in April . . . has
been taking meds . . . since then. Mycobutin was added [about] 1wk ago--had been taking
streptomycin 3 shots/wk. Since started meds experienced nausea, vomiting, wt loss of 24 lbs
(loss of appetite). Also has leg cramps since starting meds” (Exh. 1-000016); and (4) “Pt begun
on therapy [with] PZA and ofloxacin + IM streptomycin 3 x/wk [with]symptomatic
improvement (cough/N/S [night sweats]) but anorexia/nausea recent vomiting which she relates
to recent d/c [discontinuance] sm [streptomycin] ( [secondary to] local pain) ... starting of
rifabutin for 3 drug therapy (+) 22 lb weight loss since 4/95” (Exh. 1-000018, 000019).
4.
A telemeter is a continuous heart monitor (D 54).
5.
Ingersoll received a pacemaker implant in December 1997 (L 28).
vomiting; benign abd[omen] exam but [LFT value] 504 (rising since admission value of 145). She had repeatedly
normal ASTs 6/95 per OCHD [Onondaga County Health Department] TB department phone call by me. . . . At this
point, I think we should hold [illegible] TB drugs ( [primary] suspect = rifabutin). When stabilizes, [downward] ...
re-introduce serially. I will investigate whether IV streptomycin would be an alternate therapy. Have discussed
with [the cardiologist]. Will continue Amiodarone for present” (Exh. 1-000036; see also, Exh. 1-000195-196 under
the heading “Cardiac/Hepatic/Pancreatic” and the column for test labeled “AST/SGO”). Consequently, Ingersoll
was taken off TB medication (PZA, ofloxacin and rifabutin) on July 24, 1995 because of her rising LFTs (Exh.
1-000035, 000170).
On July 25, 1995, a Tuesday, Dr. Schwab found Ingersoll feeling less nauseous, and his attending note
states that her LFTs had declined. He recommended repeating the LFTs (and another test) on Thursday morning
and “if better think we should begin PZA . . . and monitor a few days. Appreciate Cardiol. f/u [follow up] [with]
Amiodarone” (Exh. 1-000036).
At some point, Ingersoll’s physicians decided to administer streptomycin to her intravenously via a
peripherally inserted central catheter (“PICC”) line (see, e.g., Exh. 1-000038). Her physicians, of course, still
believed that she was suffering from multi-drug resistant TB and were obviously struggling to find the right
combination of medications to treat both her heart disease and her presumed TB with minimum adverse side effects.
Ingersoll's streptomycin treatments appear to have been discontinued in July 1995 because of the pain and bruising
caused by intramuscular injection (Exh. 1-000019), side effects that would be avoided with administration of
streptomycin by a PICC line. Ingersoll had been placed on rifabutin after the streptomycin was discontinued, and
rifabutin was suspected as a principal cause of her elevated liver enzymes, a side effect also potentially associated
with amiodarone, the drug apparently being successfully administered to treat her serious heart ailment. 6 Thus, in
his attending note dated July 26, 1995, Dr. Schwab wrote the following:
I think [the] suggestion that we consider IV streptomycin is an excellent
one! I am not certain but suspicious that [increased] LFTs [secondary
to] rifabutin (tolerated PZA x months, [increased] LFT's off ofloxacin).7
Thus, if we can assure ourselves that Ms. Ingersoll can receive IV
streptomycin via PICC as outpt . . . , I think we should proceed ... and
[check] LFTs tomorrow [with] restart PZA as planned if O.K. She would
thus be on 2 drug therapy for MDR TB prior to d/c [discharge] [with] 3rd
drug (? Oflo v rifabutin [illegible]) to be decided by [primary]
MD/OCHD.
(Exh. 1-000039 [emphasis in original]; see also, Exh. 1-000038).
A PICC line was inserted on July 27, 1995 (Exh. 1-000041-42) for administration of streptomycin
intravenously. Dr. Schwab noted that Ingersoll's LFT value was 506, essentially the same as it had been two days
earlier (Exh. 1-000195-196), so he decided to “hold other [TB] drugs until improved” (Exh. 1-000042).
On July 29, 1995, Dr. Klemens assumed Ingersoll's care (D 54).8 In an attending note from 9:15 a.m.,
In an entry in Ingersoll’s hospital record dated July 26, 1995, the consulting cardiologist
indicated that it was the fourth day of amiodarone treatment and there was “[n]o syncope. No
vent[ricular] dysrhythmias. Con’t current dose for now. After 7 days will [decrease] to 200
BID [twice daily] for 10 days then 200 mg QD [each day] for 7 days then 100 mg QD. Would
Holter as outpt [outpatient] when on 100 mg QD” (Exh. 1-000040). A Holter monitor is
technique for long-term, continuous recording of electrocardiographic signals on magnetic tape
for scanning and selection of significant but fleeting changes that might otherwise escape notice.
6.
7.
As noted previously in the text, Ingersoll had refused to take ofloxacin from the time of her
admission on July 19, 1995 until July 22, 1995.
8.
'The official transfer order (Exh. 1-000184) in Ingersoll's hospital record indicates that the
change of Ingersoll's attending physician from Dr. Schwab to Dr. Klemens occurred on July 31,
1995 and was accepted by Ingersoll on August 1, 1995. Dr. Klemens’ handwriting first appears
she stated that Ingersoll “[f]eels fairly well, appetite starting to improve [;] PICC line fine” and recommended that
she “should receive SM [streptomycin] dose today [;] plan for M-W-F administration--await LFTs drawn this a.m.
[illegible] resuming pyrazinamide--follow thru [with] Cardiology Service recommendations” (Exh. 1-000047-48).9
When Ingersoll received her first (and, as it turned out, her only) dose of intravenously administered
streptomycin on Saturday, July 29, 1995, she immediately experienced severe adverse reactions. The nursing note
reports that Ingersoll “c/o [complains of] dizziness throughout the day. States feels dizzy 'all the time' at present. . .
. Also states that dizziness started [when] the streptomycin was started today. Also c/o slight nausea beginning @
this time” (Exh. 1-000049). In her attending note dated July 30, 1995, Dr. Klemens observed that Ingersoll had a
Very bad evening ... profound dizziness, felt she was going round in the
room[;] worse with position changes or rapid movement of head left [to]
right or right [to] left and episode of emesis
On telemetry ... no significant rhythm disturbance during evening, night
Recommend...
-cardiac status seems stable
-have to consider whether she is having SM induced vestibular toxicity [;]
had 2 months of IM [intramuscular] SM
-would request Neurology evaluation 7/31 a.m. for specific evaluation of
dizziness possible vestibular dysfunction
(Exh. 1-000050).
The consulting neurologist who examined Ingersoll on July 31, 1995 found her neurological examination to
be unremarkable and concluded that the severe vertigo, nausea and vomiting that she had experienced were “[m]ost
likely drug induced ototoxicity10 [secondary] to streptomycin;” he suggested an “ENT [Ear, Nose,
Throat]/audiology evaluation for caloric and audiometric test to facilitate detection of vestibular/cochlear 11
dysfunction” (Exh. 1-000056). The attending neurologist in a progress note dated July 31, 1995 similarly reported
in Ingersoll's medical record in this entry dated July 29, 1995, and she testified that she assumed
Ingersoll's care on that date (D 54), although the hospital record also indicates that she approved
procedures for Ingersoll on July 19, 1995 (electrocardiograph monitor) and July 27, 1995
(insertion of PICC line) (Exh. I -000001). According to Dr. Klemens, the members of the
hospital’s Division of Infectious Diseases operate on a rotating basis; therefore, her colleague,
Dr. Schwab, was Ingersoll’s admitting and attending infectious diseases physician, but “as a
matter of rotation, I assumed [Ingersoll’s] care as her in-patient attending near the end of July of
1995” (D 39).
9.
These recommendations included lowering Ingersoll's dosage of amiodarone after seven days of
high dose administration as planned (Exh. 1-000047-48). Dr. Klemens in the Discharge
Summary states that Ingersoll “was not loaded with Amiodarone secondary to baseline LFT
abnormalities” (Exh. 1-000004); however, as discussed in the text, the hospital record seems
clearly to indicate that amiodarone loading, which the cardiologists recommended, was indeed
carried out.
10.
Ototoxicity is defined as the property of having a toxic or harmful effect on the eighth cranial
nerve or the organs of balance and hearing (see also, L 117-119).
11.
The vestibule is a region of the inner ear and the cochlea is the hearing organ.
that
Hx [history] per [the consulting neurologist’s] note. 69 y/o developed
episode of vertigo[,] nausea and ataxia. PE [physical examination] shows
nystagmus12 in left lateral gaze, mild ataxia, [positive] Romberg's [sign or
symptom].13 Subjectively c/o hearing. Most likely problem is related to
vestibular dysfunction. Most likely 2y [secondary] to strep. Will do ENG
(electronystagmography)14 and repeat audiogram test. If [positive] for
[illegible] consider d/c streptomycin if possible. May try antivert[igo] 25
mg t.i.d. If no benefit should be d/c.
(Exh. 1-000054 [emphasis in original]).
The consulting physician from the specialty of ORL (otolaryngology) (the same as ENT) (D 95) who
examined Ingersoll on July 31, 1995 also noted symptoms of nystagmus and a slight drifting to the right on
Romberg’s test and a falling to the right on a stepping test (Exh. 1-000058). He concluded that Ingersoll's auditory
symptoms and dizziness were “[l]ikely streptomycin induced ototoxicity (vestibular toxicity/cochlear toxicity);”
agreed with the recommendation for an ENG and an audiogram; indicated that he would try to obtain a copy of
Ingersoll's audiogram from earlier in July for purposes of comparison; and concluded that “if pt requires
streptomycin as part of long-term T. B. Rx, symptoms will likely progress & become irreversible. Will d/w [discuss
with] attending” (emphasis added) (Exh. 1-000058).
In an entry dated July 31, 1995, Dr. Leonore Fruehan15 confirmed the plan for an ENG and audiogram for
Ingersoll; indicated that “for now, will hold off streptomycin;” 16 and found Ingersoll's LFTs to have improved
sufficiently to allow her to take PZA again (Exh. 1-000059). Referring to Dr. Fruehan’s entry, Dr. Schwab in his
attending note dated July 31, 1995 wrote
As above, pt [with] “dizziness” over weekend ([after] 1 dose IV SM),
noted by Neurol to have nystagmus, ENT ... also ? auditory toxicity--per
verbal report (faxed to [illegible] office) [bilateral] mod[erate] severe high
frequency HL [hearing loss] 7/10/95 (no baseline study) [with] f/u
scheduled 8/28/95 by dr's office Oswego. I share concern of consultants
that streptomycin may be contributing to her symptoms; it is crucial to
document/quantitate changes as she has few good Rx options for (+)
sput[um] culture of 3/13/95 . . . given [decreased] [LFTs], will restart PZA
today, hold SM pending further w/u [work up](Audiometry/ENG); if tests
confirm SM toxicity, may need to try ofloxacin (+/- [may or may not be
appropriate] antivert?).
12.
Nystagmus is defined as a rapid involuntary oscillation of the eyeballs (as from dizziness).
The Romberg test for static ataxia is carried out by having a patient stand with heels and toes
together with eyes open and then shut. The tendency to sway appreciably with eyes shut
constitutes a positive Romberg.
14.
An ENG is a diagnostic test of the vestibular (balance) system.
15.
Dr. Fruehan was another doctor (on a fellowship program) in the hospital’s Division of
Infectious Diseases, who subsequently dictated Ingersoll’s Discharge Summary, which Dr.
Klemens read and signed (D 97-98).
13.
16.
As noted in the text, Ingersoll received her first dose of streptomycin intravenously on
Saturday, July 29, 1995, and was scheduled to receive her next dose the following Monday, or
July 31, 1995, the date when Dr. Fruehan wrote this instruction.
(Exh. 1-000059).
In her attending note dated August 1, 1995, Dr. Klemens observed that Ingersoll’s symptoms of dizziness
had improved and that she “feels all right overall” (Exh.1-000061). Dr. Klemens recommended discontinuing
streptomycin, noting that this had already occurred, and remarked on the “need to construct a 3-4 drug regimen for
MDR TB,” taking into consideration the adverse side effects experienced by Ingersoll from medications previously
administered. She identified these adverse side effects as toxicity to the eighth cranial nerve for streptomycin as
well as gastrointestinal distress for ofloxacin and elevated liver enzymes for rifabutin at the dosages administered.
A progress note entry in Ingersoll’s hospital record for August 1, 1995 states that “[a]udiometry done on
7/10/95 after 2 mo. IM Streptomycin (3x/wk) showed high-freq. hearing loss that could not be proven [secondary] to
SM therapy since no previous hearing tests were performed” (Exh. 1-000062).17 The audiologist who performed
Ingersoll’s hearing evaluation on August 1, 1995 indicated under the heading of “History” that “[p]t reports
episodes of objective/subjective vertigo for the last year. Episodes have increased in frequency since 7/19/95, per
report and appear to occur with position changes. Occasional tinnitus (‘drone’) is noted” (emphasis added); and
under the heading “Impressions” that “[a]udiologic results suggest a moderate sloping to severe high frequency
sensorineural hearing loss bilaterally” (Exh. 1-000069; see also, Exh. 1-000063, 000064). The audiologist
recommended (1) continued medical and otologic follow-up regarding Ingersoll’s complaints of dizziness; (2)
periodic hearing re-evaluations while she was receiving ototoxic medication; and (3) annual hearing examinations.
The report for the ENG performed on Ingersoll on August 2, 1995 includes a finding of “ENG within normal limits”
(Exh. 1-000212; see also, Exh. 1-000063).
After consultation with colleagues, Dr. Klemens on August 2, 1995 decided to discontinue Ingersoll's
anti-TB drug therapy:18 Dr. Klemens was not sufficiently convinced that Ingersoll had been correctly diagnosed
with multi-drug resistant TB to justify treatment with anti-TB medications in light of the serious side effects that she
had been experiencing (D 74-79). The PICC line for intravenous administration of streptomycin was removed from
Ingersoll’s left arm on August 2, 1995 (Exh. 1-000065); Ingersoll was discharged from the hospital on August 3,
1995, with close follow-up anticipated by the Onondaga County Health Department Tuberculosis Clinic (Exh.
1-000003, 000005, 000067-000068).
B. Ingersoll’s visits to the hospital clinic as an outpatient on September 29, 1995 and April
12 and 30,
1996, August 21, 1996 and September 30, 1996
Ingersoll visited the hospital clinic to be seen by Dr. Klemens as an outpatient on September 29, 1995, and
Dr. Klemens’ outpatient progress notes indicate that Ingersoll told her that she felt better and had both regained her
appetite and added weight (Exh. 2-000221; see also, D 102). The progress notes do not indicate that Ingersoll
complained of dizziness or hearing loss.
Ingersoll’s next--and final--visit to the hospital clinic to be seen by Dr. Klemens occurred on April 12,
1996. Dr. Klemens in her outpatient progress notes refers to this visit as a “comprehensive evaluation” (see also, D
90), notes that Ingersoll “[c]urrently feels quite well” and her “only problem is difficulty keeping weight on” (Exh.
2-000224); and includes the comment that “[b]aseline ataxia hearing loss presumed [secondary to] SM tx
[treatment]” (Exh. 2-000025). Dr. Klemens prescribed follow-up audiometry and noted that Ingersoll “now off SM
x 9 months” (id.).
Ingersoll underwent a hearing re-evaluation at the hospital clinic on April 30, 1996. The audiometric test
results again showed a moderate high frequency bilateral hearing loss (Exh. 1-000070).
Apparently upon referral from her family physician, Ingersoll went to the hospital clinic on August 21,
The notation “See report in front pocket” indicates that the hospital had a copy of Ingersoll's
7/10/95 hearing test; however, the Court could not find a copy of it in the portion of the certified
hospital record admitted into evidence (see, D 42-45).
17.
18.
At the time Dr. Klemens made this decision, PZA was the only anti-TB medication being
taken by Ingersoll. As previously discussed in the text, Ingersoll was taking PZA, ofloxacin and
rifabutin upon her admission to the hospital on July19,1995; she refused to take ofloxacin from
July 19 until July 22, 1995, when Dr. Schwab convinced her to do so again; Dr. Schwab
discontinued all her anti-TB medications on July 24, 1995; she received one dose of
streptomycin intravenously on July 29, 1995; and she began to take PZA again on July 31, 1995.
1996, complaining of dizziness. The outpatient progress notes from ENT state that Ingersoll “complains of dizziness
which started approximately a year ago when she was treated for TB with streptomycin medications[;] she definitely
feels that her problem is caused by streptomycin [see, D 46-48]. [patient denies or no] tinnitus, [patient denies or
no] hearing loss;” notes “HEENT [Head, Eyes, Ears, Nose, Throat]--WNL [within normal limits]” and “Audio:
Bilateral high tone sensory hearing loss (symmetrical);” and under “plans” lists an ENG on September 4, 1996
followed by a return visit to the clinic on September 30, 1996 (Exh. 2-000228).
The outpatient progress notes from the ENT physician for Ingersoll’s clinic visit on September 30, 1996, in
relevant part, state that “f/u s/p [status post] Rx for TB [illegible] [with] INH/PZA/Eth/Streptom IV in 1995. As per
record--prob. had some vestibular ototoxicity (I do not have prev ENG for comparison). Now 1 year out c/o
bumping into objects. [patient denies or no] Vertigo, [no] Tinnitus;” notes that, upon examination, Ingersoll did not
exhibit nystagmus; and further states that her ENG was within normal limits, but again remarks that her previous
ENG was not available for comparison (Exh. 2-000229).19 This physician sums up his findings as follows: “??
[possible or questionable] Prev. Vestibular Ototoxicity;” “Recovery [or recovering] now;” “ENG-WNL;” “Probable
CNS [cranial nervous system] compensation--maybe recovery by hair cell regeneration??;” “Vestibular exercises
prescribed;” and “Will mail out exercise sheet when we have it ready” (id.).
II. Ingersoll’s Physical Injuries
A. Ingersoll’s testimony
Ingersoll testified that she had led an active life and “worked right up until I was tested for tuberculosis” in
the spring of 1995 (D 21, 25). Her subsequent treatments with various anti-TB medications made her “deathly
sick” (D 22) with nausea and vomiting (id.; see also, D 27,
L 16); she lost weight (L 17); her hips turned “black and blue” from intravenous injections of streptomycin three
times a week (D 23, 26-28; L 15); and she was unable to leave her home without wearing a heavy mask (D 24, 27; L
21).
Ingersoll eventually “ended up with syncope and in the hospital for 16 days” (D 23; see also, L 16-18),
where she was kept in respiratory isolation (D 31). She testified that while in the hospital she was under the care of
Dr. Klemens and Dr. Bornstein, 20 who “kept me on the medication. They would come in and sit on the edge of the
bed, and say, I’m sorry, we cannot find what’s wrong with you. We can’t get to the bottom of it, because there was
no bottom. I didn’t have it, you know. And then they started a pick [i.e., PICC] line, which I later found out they
should not have done” (L 18; see also, L 37-38).
Ingersoll testified that her anti-TB medications were discontinued about two days before she was
discharged from the hospital in August 1995 (D 28; L 22), but she has continuously suffered symptoms that she
attributes to her three to four months of exposure to these drugs. According to Ingersoll, “I can’t hear as well as I
used to. I’m dizzy all the time. I have to be careful when I walk. I have to grab on things. I have fallen three
times in the last two months” (D 27); and she still suffers from nausea (L 23). Ingersoll also complained about loss
of energy, appetite and weight (D 23, 29-30, 35; L 22-23). She acknowledged that the bruising disappeared with
the cessation of intravenous streptomycin injections (D 28); and that she may have suffered hearing loss prior to her
treatment with anti-TB medications (L 29; see also, D 27, 31; L 13, 23-24). At the time of trial, Ingersoll was
taking seven different medications for her heart condition and for arthritis (L 32-34, 39-41; D 33-34).
B. Dr. Klemens’ testimony
Dr. Klemens testified that Ingersoll’s admitting diagnosis was syncope and the presumptive cause was a
cardiac rhythm disturbance; “[h]owever, on the cardiac monitor and on serial testing, there was no evidence of an
acute myocardial event, and she had some cardiac rhythm disturbance, but nothing that definitely could explain her
Ingersoll’s ENG Report dated August 2, 1995 is included in the certified hospital record (Exh.
1-000212), and also includes the finding of “ENG within normal limits,” as noted previously.
19.
Dr. Donald L. Bornstein, with an address at the hospital’s Department of Internal Medicine, is
listed as Ingersoll’s referring physician for her admission to the hospital on July 19, 1995 (Exh.
1-000000); Dr. Klemens’ Discharge Summary also noted that when Ingersoll was discharged
from the hospital, she had a follow-up appointment with Dr. Bornstein at the Onondaga County
Health Department Tuberculosis Clinic (Exh. 1-000005). The hospital record indicates that Dr.
Bornstein was consulted about and/or approved of Ingersoll’s release from respiratory isolation
at the hospital on July 21, 1995 (Exh. 1-000028, 000031, 000084; see also, L 100-105).
20.
passing out episode” (D 57). Moreover, “she had further symptoms that required further evaluation; dizziness,
difficulty ambulating in the hallway, nausea, and vomiting. Initially, the concern was, again, with the persistent
dizziness that she was experiencing, that she had further arrhythmias, and so we continued to monitor her heart
rhythm. Unfortunately, we could not catch any rhythm disturbances that caused her dizziness” (id.; see also, D
100-101).
Dr. Klemens was aware that Ingersoll, with whom she was acquainted prior to her admission to the hospital
on July 19, 1995,21 had been treated for TB since April 1995. She therefore reviewed Ingersoll’s anti-TB drug
treatment regimen and “the time course of her symptoms that she was complaining about in the hospital;
specifically, the dizziness, difficulty walking, nausea, vomiting, and generalized weakness” (D 58).
Dr. Klemens explained that she was “concerned about toxicity from the injectable agent, Streptomycin” (D
81). This drug may cause hearing loss or balance disturbances as a result of its toxic effects on the eighth cranial
nerve, which has two separate branches “one . . . for hearing, and one . . . for balance function or vestibular
function;” and Ingersoll “had noticed some decreased hearing that occurred with the initiation of the Streptomycin
therapy and was progressive” (D 82).
The specific symptoms suffered by Ingersoll were “a muffled sensation in the ears” and “persistent
nausea, vomiting, and difficulty with balance”: “And what I specifically noted once [Ingersoll] was released from
respiratory isolation was that she would be walking down the hospital hallway, and needed to hold onto the wall,
otherwise, she would feel like she was falling into the wall. This was a distinct change, and I was concerned about
the Streptomycin toxicity” (D 82-83).22
In Dr. Klemens’ opinion, Ingersoll’s symptoms of pain in the buttocks area, loss of appetite, nausea,
vomiting, abnormal liver functions, dizziness and muffled hearing were adverse reactions to her prescribed anti-TB
medications; specifically, streptomycin, rifabutin and ofloxacin (D 72-75). Because Dr. Klemens “felt that, in fact,
[Ingersoll] did not have pulmonary tuberculosis, . . . [her] interest was in stopping these medications” (D 77). She
consulted with colleagues and with Dr. Margaret Oxtoby (“Dr. Oxtoby”) from the New York State Department of
Health, who “heard [Dr. Klemens’] argument and felt that [discontinuance of Ingersoll’s anti-TB treatment regimen]
was a reasonable course of action at that point in time” (D 78; L 110, 116-118).23 Accordingly, Dr. Klemens
ordered discontinuance of Ingersoll’s anti-TB drug treatment regimen in early August 1995 (but see, n 18, supra; see
also, D 87).
Dr. Klemens then spoke to Ingersoll “at length” and explained to her “that there was probably an error
made somewhere along the line. I could not say for sure where that occurred, but that I believed that she did not
have tuberculosis, and that I wanted to stop her agents for chemotherapy” (D 79). When Ingersoll asked her
whether her symptoms would improve, Dr. Klemens advised her that she “did not know at that time if she would
improve. The hearing and the vestibular function generally will improve or may improve within the first two or
three months of discontinuing the Streptomycin. I said the only thing we could do was to take it one month at a
time, and that I would plan to do a follow-up evaluation” (D 90; see also, D 80).
Dr. Klemens had treated Ingersoll’s son for a terminal illness; Ingersoll accompanied her son
to his clinic appointments with Dr. Klemens and cared for him until his death (D 20, 23-25,
83-85, 94).
21.
22.
Just when Dr. Klemens made these worrisome observations is unclear: the hospital record
indicates that Ingersoll was released from respiratory isolation on the evening of July 21, 1995
(Exh. 1-000028, 000031, 000084); and received her first and only dose of streptomycin while
hospitalized on July 29, 1995, more than a week later and with Dr. Klemens’ knowlege and
approval (Exh. 1- 000059).
23.
Dr. Oxtoby testified that her recommendation based on general tuberculosis principles was to
treat Ingersoll very aggressively, working through the side effects, or, alternatively, to
discontinue treatment altogether and monitor her health because the “in-between route was, in
fact, the most dangerous” since it enhances the risk that the “organism [will] develop further
resistance, and make it even more difficult to treat, and . . . increase the possibility that the
person will . . . develop infectious TB and spread that strain to other persons” (L 137).
Dr. Klemens testified that she saw Ingersoll three separate times after her hospitalization on a follow-up
basis,24 explaining that as “the physician who had taken the responsibility to stop
[Ingersoll’s] chemotherapy,” she wanted to make sure that “nothing untoward happened” since she could not be
“100 percent sure” that Ingersoll did not have TB (D 80). She “also wanted to follow along in terms of further
evaluation of her adverse reactions from the anti-tuberculosis therapy” (id.). Dr. Klemens further testified that after
she ordered follow-up audiometry for Ingersoll in April 1996, she “re-referred her back to the Ear, Nose, and Throat
Clinic to see if there was anything they could offer” (D 87). 25
The reports from these audiometry and ENT referrals “helped to confirm” Dr. Klemens’ opinion that
Ingersoll’s symptoms were adverse side effects of the anti-TB medications with which she had been treated, and
affected her prognosis for Ingersoll’s continued recovery. Specifically, “the follow-up audiometry was
approximately eight months after the medications were discontinued, and the audiometry showed continued
high-frequency hearing loss. There had been no improvement on the audiometry. In addition, the ear, nose, and
throat physician felt that she still had significant vestibular side effects although it appears that she was better
compensating in terms of her balance and walking” (D 89).26 Dr. Klemens testified that in her opinion Ingersoll has
persistent nausea and vomiting on the basis of vestibular toxicity from the
Streptomycin; and continued problems with balance, although I think
that the longer this goes on, she learns to compensate for her problems
with the balance, but I believe that these are permanent adverse reactions
from the Streptomycin, and I believe that it’s now been long enough, five
years, that she will never have improvement, and I think the follow-up
studies at eight months also told me that the prognosis for improvement
was nil.
(D 91).
In Dr. Klemens’ opinion, neither the syncope leading to Ingersoll’s hospitalization nor her inability to regain her
appetite and weight after her hospitalization were attributable to the anti-TB medication with which she was treated
(D 100, 102-103).
C. The State’s motion to preclude
The State acknowledges that Ingersoll experienced nausea, loss of appetite, weight loss and bruising during
the period from April 21 through August 3, 1995 as a result of the anti-TB medication that she was taking at the time
(Defendant’s Post-Trial Memorandum of Law, at 13; Letter to this Court dated June 15 and received June 19, 2000),
but moved at trial to preclude Dr. Klemens’ testimony as to causation or any long-term consequences of Ingersoll’s
exposure to anti-TB drugs by reason of Ingersoll’s failure to disclose Dr. Klemens as an expert witness pursuant to
CPLR 3101 (d) (1) (D-64-66, 70-71). Ingersoll subpoenaed Dr. Klemens to testify (D-39, 93).
During discovery, the State asked Ingersoll to identify expert witnesses, and she responded that she did not
24.
As discussed in the text, the hospital record discloses that Ingersoll visited the hospital clinic to
be seen by Dr. Klemens on September 29, 1995 and April 12, 1996. In addition, Dr. Klemens
on April 12, 1996 referred Ingersoll for audiometry on April 30, 1996. Dr. Klemens confirmed
on cross-examination that she last saw Ingersoll as a patient in April 1996 (D 102-103).
According to the hospital record, Ingersoll’s primary care physician at the time, Dr. Mandanas,
and not Dr. Klemens, referred her to the hospital clinic on August 21, 1996 for an ENT
examination. In fact, the outpatient progress notes from Ingersoll’s clinic visit on August 21,
1996 state “new pt ref’d [referred] by Dr. Mandanas,” (Exh. 2-000228); the outpatient progress
notes dated September 30, 1996, however, identify Ingersoll’s visit as a follow-up to her drug
treatment for TB (Exh. 2-000229).
25.
This opinion is not readily apparent from the ENT physician’s outpatient progress notes dated
September 30, 1996 (Exh. 2-000229), which are discussed in the text.
26.
yet know which experts she would call at trial, but that she “intend[ed] to call a medical doctor as an expert to testify
as to the negligence and malpractice of the Defendant”27 and “also intend[ed] to call Dr. Sally Klemens . . . to testify
as to the care and treatment that [she] provided to [Ingersoll] and the fact that [she was] providing treatment,
including chemotherapy, for a diagnosis of tuberculosis which was based on the Defendant’s negligence” (Response
to Demands dated May 9 and filed May 22, 1997). The State argued surprise and prejudice to the extent Dr.
Klemens’ testimony went beyond matters of care and treatment to touch on causation and prognosis or permanent
effects from the administration of streptomycin. Citing Chapman v State of New York (189 AD2d 1075) and
Ingleston v Francis, (206 AD2d 745), two Third Department cases, and Federal case law interpreting the Federal
rule from which CPLR 3101 (d) (1) (i) derives, the State urged the Court to exercise its discretion to preclude such
testimony.
Ingersoll took the position that Dr. Klemens was not subject to CPLR 3101 (d) (1) (i) disclosure because
she was her treating physician, not an expert engaged for trial, and, in any event, the State could not legitimately
claim surprise because Dr. Klemens’ opinion on causation and prognosis stemmed directly from care and treatment
that she had provided to Ingersoll as the State’s employee (D 66-68).28 Ingersoll further argued that the Fourth,
Second and First Departments have uniformly recognized that a treating physician by definition falls completely
outside the scope of CPLR 3101 (d) (1) (i), and that the Third Department has not held otherwise. 29
III. CPLR 3101 (d) (1) (i) Expert Disclosure/Treating Physicians
Section 3101 (d) (1) (i) of the CPLR, which was adopted in New York as part of the Medical Malpractice
Reform Act (L 1985, ch 294), permits discovery upon request of the identity (except in a medical malpractice
action) and qualifications of each person expected to be called by a party as an expert witness at trial; the subject
matter and the substance of facts and opinions to which the expert will testify; and a summary of the grounds upon
which the expert’s opinion is based. Failure to retain an expert sufficiently before trial to comply with CPLR 3101
(d) (1) (i) may result in preclusion of the expert’s testimony, but not solely on grounds of noncompliance so long as
good cause is demonstrated. Section 3101 (d) (1) (i) was modeled after a provision (Rule 26 [b] [4] [A] [i]) 30 in
27.
Ingersoll subsequently withdrew her cause of action for medical malpractice.
Ingersoll repeatedly asserted that Dr. Klemens was defendant’s employee--a disputed point (L
110-114)--at the time that she was her treating physician. When Dr. Klemens testified in the
damages trial, she identified her employer as St. Joseph’s Hospital in Syracuse, New York (D
37).
28.
29.
The Court of Claims Act does not address venue; consequently, the relevant provisions of the
CPLR apply (see, Court of Claims Act § 9 [9]; Richards v State of New York, 281 App Div 947;
Poolet v State of New York, 56 Misc 2d 933). The Chief Clerk assigns claims in accordance
with CPLR 506 (b), which provides, in relevant part, that proceedings against a body or officer
are to be commenced “where the respondent made the determination complained of . . . or where
the material events otherwise took place or where the principal office of the respondent is
located” (CPLR 506 [b]). Accordingly, this claim was properly assigned to the Albany District,
site of the principal offices of the New York State Department of Health and the State University
of New York, the actors identified in the claim as negligent; and the Albany District is, of course,
located within the Third Department. Accordingly, Third Department case law is controlling on
this claim.
30.
CPLR 3101 (d) (1) (i) in relevant part provides that “[u]pon request, each party shall identify
each person whom the party expects to call as an expert witness at trial and shall disclose in
reasonable detail the subject matter on which each expert is expected to testify, the substance of
the facts and opinions on which each expert is expected to testify, the qualifications of each
expert witness and a summary of the grounds for each expert’s opinion;” Rule 26 (b) (4) (A) (i),
as adopted in 1970, provided that “[a] party may through interrogatories require any other party
to identify each person whom the other party expects to call as an expert witness at trial, to state
the subject matter on which the expert is expected to testify, and to state the substance of the
Rule 26 (b) (4) of the Federal Rules of Civil Procedure, which was added to the federal discovery rules by
amendment in 1970 (see, Chapman v State of New York, 227 AD2d 867, 868-869; see also, Siegel, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3101:29A, at 46).
A. CPLR 3101 (d) (1) (i)’s Federal antecedents and Federal precedents
1. The 1970 version of Rule 26
The prefatory language of Rule 26 (b) (4), as adopted in 1970, limited the rule’s scope to those experts
who acquired or developed facts and opinions in anticipation of litigation or for trial; 31 and the accompanying
Advisory Committee Notes contrast such a Rule 26 (b) (4 ) expert with “the expert whose information was . . .
acquired . . . because he was an actor or viewer with respect to the transactions or occurrences that are part of the
subject matter of the lawsuit [who] should be treated as an ordinary witness” (see, Fed Rules Civ Proc Rule 26 [b]
[4], 28 USCA, Advisory Comm Notes, 1970 amendment). Thus, an expert (such as a medical doctor) who acquired
information as an actor or viewer of the transaction or occurrence at issue was subject to discovery as an ordinary
witness under Rule 26 (b) (1), which permitted discovery of any non-privileged material relevant to the subject
matter of the lawsuit; and Rule 26 (b) (4) governed discovery of only those experts who acquired knowledge or
formed opinions in the context of litigation.
In addition, Rule 26 (b) (4) explicitly subdivided the experts to which it applied (i.e., those who developed
or acquired facts or opinions in anticipation of litigation or for trial) into two categories subject to varying degrees of
discovery: (1) Rule 26 (b) (4) (A) governed discovery of any such person expected to be called as an expert
witness at trial, for whom expert disclosure (i.e., qualifications, subject matter and substance of facts and opinions
and summary of grounds) was to be provided if requested by interrogatory (Rule 26 [b] [4] [A] [i], from which
CPLR 3101 [d] [1] [i] derives; see, n 30, supra); and subject to further disclosure (e.g., oral deposition) upon motion
and court order setting both any restrictions as to scope and such provisions concerning costs and fees as the court
deemed appropriate (Rule 26 [b] [4] [A] [ii]); and (2) Rule 26 (b) (4) (B) permitted discovery of a non-testifying
expert “who has been retained or specially employed by another party in anticipation of litigation or preparation for
trial,”32 but only as provided under Rule 35 (b) (exchange of medical reports) or upon a showing of “special
circumstances” to the effect that it is “impracticable for the party seeking discovery to obtain facts or opinions on the
same subject by other means” (compare Rule 26 [b] [4] [A] [ii] and Rule 26 [b] [4] [B] with CPLR 3101 [d] [iii],
which provides for further disclosure of any expert “only by court order upon a showing of special circumstances
and subject to restrictions as to scope and provisions concerning fees and expenses as the court may deem
appropriate”). Finally, subsection (C) of Rule 26 (b) (4) directed or authorized the court, unless manifest injustice
would result, to shift certain costs to the party seeking additional expert discovery (e.g., oral depositions) under both
subsection (A) and subsection (B).
The dichotomy between the ordinary witness (actor/viewer) expert and the Rule 26 (b) (4) expert as well as
facts and opinions to which the expert is expected to testify and a summary of the grounds for
each opinion.”
Specifically, the opening sentence of Rule 26 (b) (4) states as follows: “Trial Preparation:
Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under
the provisions of subdivision (b) (1) of this rule and acquired or developed in anticipation of
litigation or for trial, . . . .” (emphasis in original). As subsequently discussed in the text, CPLR
3101 (d) does not contain the same or similar limiting language.
31.
Judicial views varied as to whether the phrase “retained or specially employed by another party
in anticipation of litigation or preparation for trial” (Rule 26 [b] [4] [B]) prescribed requirements
in addition to those imposed by the prefatory language of Rule 26 (b) (4) (i.e., “acquired or
developed in anticipation of litigation or for trial”), which perforce qualifies both subsection (A)
(witness expert) and subsection (B) (non-witness retained expert); and the consequences if it did,
especially for experts informally consulted by a party in preparation for trial but not retained, and
for a party’s expert employees assigned to work on a matter in litigation (see, Annotation,
Pretrial Discovery of Facts Known and Opinions Held by Opponent’s Experts under Rule 26 [b]
[4] of Federal Rules of Civil Procedure, 33 ALR Fed 403, § 15).
32.
the differing scope of discovery available from the Rule 26 (b) (4) witness expert (subsection [A]) and the Rule 26
(b) (4) non-witness retained expert (subsection [B]) and the cost-sharing provisions (subsection [C]) reflected the
drafters’ dual purpose to provide counsel with an opportunity for effective cross-examination and rebuttal and to
discourage “free riding,” the practice by which a party constructs a case by bootstrapping an opponent’s diligent
expert preparation. As Mr. Justice Jackson remarked in his concurring opinion in Hickman v Taylor (329 US 495,
516): “Discovery was hardly intended to enable a learned profession to perform its functions either without wits or
on wits borrowed from the adversary” (see, James L. Hayes and Paul T. Ryder, Jr., Special Topics in the Law of
Evidence: Rule 26 (b) (4) of the Federal Rules of Civil Procedure: Discovery of Expert Information, 42 U Miami
L Rev 1101 [1988]; see also, Kelly McDonald, Gimme Shelter? Not If You Are a Non-Witness Expert Under Rule 26
(b) (4) (B), 56 U Cin L Rev 1027 [1988] [noting that the greater protection afforded by Rule 26 (b) (4) to a
non-testifying retained expert--intended to prevent the discovery abuse of free riding--unwittingly promoted
“sheltering,” or retaining an expert by retaining him solely to prevent his testimony at trial on behalf of an
adversary; and observing that the courts had dealt with sheltering principally through application of the ordinary
witness (actor/viewer) doctrine under Rule 26 (b) (1), and the exceptional circumstances test under Rule 26 (b) (4)
(B)]). Federal courts subsequently faced with puzzling out Rule 26 (b) (4)’s intricacies and import for the treating
physician witness generally hewed to the view that “Rule 26 focuses not on the status of the witness, but rather on
the substance of the testimony” (Patel v Gayes, 984 F2d 214, 218). In Patel, the trial court had excluded testimony
of plaintiff’s two subsequently treating physicians, who had been deposed but not identified as experts pursuant to
Rule 26 (b) (4). The Seventh Circuit Court of Appeals affirmed, finding that the district court’s ruling was not
manifestly erroneous because the excluded testimony (opinion as to the applicable general medical standard of care
and comments on electrocardiograms not used by the treating physicians in their treatment of plaintiff) did not
derive from the treating physicians’ personal experience with plaintiff and was, instead, based on knowledge gained
outside their treatment of him (see also, Nelco Corp. v Slater Elec., Inc., 80 FRD 411, 414 [“under Rule 26 [b] [4]
[A], a witness sought to be discovered may be an ‘expert’ as to some matters and an ‘actor’ as to others”]; Colby v
Eli Lilly and Co., 1982 US Dist LEXIS 18317, *8 [because treating physician may function as fact witness with
respect to certain topics and as expert within the meaning of Rule 26 (b) (4) with respect to other topics, court set
aside magistrate’s decision refusing to permit defense counsel to conduct private interviews of plaintiff’s treating
physician since “[m]ethods of discovery of facts known or opinions held prior to becoming an expert witness would
be entirely up to defendant’s counsel”];33 Baran v Presbyterian Univ. Hosp., 102 FRD 272 [court properly allowed
defendant doctors to give opinion testimony in malpractice action because they are actors/viewers not subject to
Rule 26 (b) (4), whose drafters did not intend for it to apply to a party who is also an expert]; Quarantillo v
Consolidated Rail Corp., 106 FRD 435 [plaintiff’s motion for protective order prohibiting or limiting depositions of
his treating physician is denied because treating physician is actor/viewer with respect to facts obtained and opinions
formed during treatment of plaintiff subsequent to his injury]; Sipes v United States of America, 111 FRD 59 [upon
defendant’s motion to prevent plaintiff’s counsel from precluding informal contacts between one of plaintiff’s
treating physicians and defense counsel, court holds that plaintiff’s treating physicians are ordinary fact witnesses
whom defense counsel may contact informally and further, it was improper for plaintiff to name treating physicians
as Rule 26 [b] [4] witnesses where their information and opinions stemmed from their roles as actors/viewers of
plaintiff’s treatment]; Brandstetter v National Railroad Passenger Corp., 1987 US Dist LEXIS 16078 [on
defendant’s motion to compel, court rules that discovery is available from plaintiff’s treating physicians by formal or
informal means as to all information and opinions developed during treatment, but Rule 26 (b) (4) applies to
discovery of any information developed and opinions framed by treating physicians in anticipation of litigation];
McReynolds v Bigler, 1990 US Dist LEXIS 11651[court sets aside magistrate’s ruling to strike treating physician’s
deposition testimony pertaining to medical opinions, conclusions, and prognoses because treating physician is a fact
witness as to information, conclusions and opinions obtained in the course of and necessary for treatment];
MacDonald v United States of America, 767 F Supp 1295 [court denies motion to strike expert testimony for failure
to comply with Rule 26 (b) (4) because physicians’ testimony was almost entirely based on examinations of plaintiff
not performed in anticipation of litigation, although some of the facts known and opinions held by them were
formed after they were retained as experts]).
33.
In New York, by way of contrast, such informal discovery of a treating physician is not
permitted (see, Anker v Brodnitz, 98 Misc 2d 148, affd 73 AD2d 589, lv dismissed 51 NY2d 703,
743 [service of a complaint in a medical malpractice action does not effect waiver of
physician-patient privilege to extent that defendant can privately interview a non-party treating
physician during pre-trial discovery without court order or patient’s express consent]).
2. The 1993 version of Rule 26
Rule 26 was substantially revised and reorganized in 1993. First, new Rule 26 (a) (2) (A) mandates
disclosure of the identity of any expert witness who may be used to present opinion testimony at trial, even without a
formal discovery request; and these experts are subject to deposition without the necessity for a court order upon
motion (Rule 26 [b] [4] [A]).34 Next, the prefatory language limiting Rule 26 disclosure to those experts who
acquired or developed facts and opinions in anticipation of litigation or for trial was deleted; and the requirement in
former Rule 26 (b) (4) (A) (i) for disclosure from any such person expected to be called as an expert witness at trial
was amended to require “a witness who is retained or specially employed to provide expert testimony in the case or
whose duties as an employee of the party regularly involve giving expert testimony [to be] accompanied by a written
report prepared and signed by the witness,” which shall contain a complete statement of and the basis for the
witness’ opinions; underlying data; exhibits used to summarize or support the opinions; the witness’ qualifications,
including a list of all publications authored by the witness in the preceding ten years; the witness’ compensation; and
a listing of any other cases in which the witness testified as an expert at trial or by deposition in the preceding ten
years (Rule 26 [a] [2] [B]). The deposition of any person identified as an expert witness may be taken, but not until
after the written report is provided, if required under Rule 26 (a) (2) (B) (Rule 26 [b] [4] [A]). Finally, the scope of
discovery from a non-witness retained expert was left essentially unchanged (Rule 26 [b] [4] [B]); the cost-sharing
provisions were revised to take into account the new provisions (especially the requirement for a written report) in
revised Rule 26; and failure without substantial justification to comply with Rule 26 (a) disclosure results in
automatic exclusion of the undisclosed witness or information unless the failure was harmless (Rule 37 [c] [1]).
The Advisory Committee Notes accompanying the 1993 amendments observe that the written report (new
Rule 26 [a] [2] [B]) was substituted for a statement of the “substance” of expert testimony (former Rule 26 [b] [4]
[A] [i], which is virtually identical to CPLR 3101 [d] [1] [i]; see, n 30, supra) because the latter frequently led to
disclosure “so ‘sketchy’ and vague that it rarely dispensed with the need to depose the expert and often was even of
little help in preparing for a deposition of the witness” (see, Fed Rules Civ Proc Rule 26 [a] [2] [B], 28 USCA,
Advisory Comm Notes, 1993 amendment). In addition,
[f]or convenience, this rule . . . continue[s] to use the term “expert” to
refer to those persons who will testify under Rule 702 of the Federal Rules
of Evidence with respect to scientific, technical, and other specialized
matters. The requirement of a written report . . . however, applies only to
those experts who are retained or specially employed to provide such
testimony in the case or whose duties as an employee of a party regularly
involve the giving of such testimony. A treating physician, for example,
can be deposed or called to testify at trial without any requirement for a
written report.
(Id.) (emphasis added).
In Baker v Taco Bell (163 FRD 348), perhaps the leading post-1993 amendments case, plaintiffs moved to
compel reimbursement from defendants for the fees charged by treating physicians to review records in preparation
for their depositions. The court denied the motion because treating physicians are
witnesses testifying to the facts of their examination, diagnosis and
treatment of a patient. It does not mean that [they] do not have an
opinion as to the cause of an injury based upon their examination of the
patient or to the degree of injury in the future. These opinions are a
necessary part of the treatment of the patient. Such opinions do not make
the treating physicians experts as defined by Rule 26 (b) (4) (C) [requiring
reimbursement/cost sharing].
(Baker v Taco Bell, supra, 163 FRD, at 349; see also, Mangla v Univ. of Rochester, 168 FRD 137 [plaintiff’s
34.
By the time Rule 26 was revised in 1993, depositions of witness experts had, in fact, become
standard practice in Federal litigation (see, Fed Rules Civ Proc Rule 26 [b] [4] [A], 28 USCA,
Advisory Comm Notes, 1993 amendment).
treating physician is an ordinary witness entitled to statutory per diem fee for attendance at deposition plus mileage,
not compensation at his normal billing rate for time spent to prepare for and attend deposition]). 35
In general, other Federal courts have similarly most often found that a treating physician is not an expert
from whom a written report is required by Rule 26 (a) (2) (B) as a prerequisite to opinion testimony on causation,
prognosis and future treatment to the extent that the substance of such testimony stems from patient treatment and
care (see, e.g., Wreath v United States of America, 161 FRD 448, 450 [treating physician, who was identified as an
expert witness, may give opinion testimony stemming from his care and treatment of plaintiff without preparing a
written report: “The determinative issue is the scope of the proposed testimony. For example, a treating physician
required to review medical records of another health care provider in order to render opinion testimony concerning
the appropriateness of the care and treatment of that provider would be specially retained notwithstanding that he
also happens to be the treating physician”]; Hall v Sykes, 164 FRD 46, 48 [“If a treating physician forms an opinion
of the causation of an injury to a patient and the prognosis of the patient’s condition during the treatment then such
opinion may be expressed by the treating physician without the necessity of a report. . . . However, if a physician,
even though he may be a treating physician, is specially retained or employed to render a medical opinion based
upon factors that were not learned in the course of treatment of the patient, then such a doctor would be required to
present an expert written report”]; Salas v United States, 165 FRD 31 [treating physicians may testify as to their
opinion about causation and permanency of plaintiff’s injuries and are not Rule 26 experts subject to the requirement
for a written report because the treating physicians, who did not review any medical records other than those
involved in their care and treatment of the patient and were not asked to comment upon or review the opinions of
other doctors, formed their opinions directly through their treatment of plaintiff ]; Bucher v Gainey Transp. Service
of Indiana, 167 FRD 387, 390 [“the plaintiff[] can not avoid the requirements of Rule 26 by simply indicating that
[her] experts are plaintiffs’ treating physician . . . Rule 26 focuses not on the status of the witness, but rather on the
substance of the testimony” (citing Patel v Gayes, 984 F2d 214, 218, supra); but cf., Brown v Best Foods, Inc., 169
FRD 385, 387-388, supra (“Some courts have held that treating physicians and other medical providers are always
exempt from the Rule 26 [a] [2] [B] requirement to prepare and sign reports based on the Advisory Committee
Notes,” citing Smith v State Farm Fire and Cas. Co. [164 FRD 49, 56, supra] and Bucher, supra, at 390)]; Brown v
Best Foods, Inc., 169 FRD, supra, at 389 [court denies defendant’s motion to strike testimony of plaintiff’s treating
physician, who was identified as an expert witness, for failure to provide a written report, but directs plaintiff to
provide defendant a written report “if plaintiff anticipates that (her treating physician’s) testimony at trial will
approach an area not sufficiently related to information disclosed during the care and treatment of plaintiff”]; Piper v
Harnischfeger, 170 FRD 173 [plaintiff’s disclosure of treating physicians as expert witnesses to testify at trial did
not trigger requirement for written report because physicians would testify as to causation, future treatment, extent
of disability and the like based on knowledge acquired in the course of treatment, and rule only requires written
report from experts “retained or specially employed” to provide expert testimony]; Shapardon v West Beach Estates,
172 FRD 415 [“Treating physicians commonly consider the cause of any medical condition presented in a patient,
the diagnosis, the prognosis and the extent of disability, if any, caused by the condition or injury. Opinions as to
these matters are encompassed in the ordinary care of a patient and do not subject the treating physician to the report
requirement of Rule 26 (a) (2) (B)”]; Lauria v National R.R. Passenger Corp., 1997 US Dist LEXIS 3408, at *4
[“[A] court must inquire whether the treating physician acquired his opinion as to the cause of the plaintiff’s injuries
directly through his treatment of the plaintiff. . . . If so, then even though the treating physician may be deposed, he
is not required to file the written report required by Rule 26 (a) (2) (B). In this situation, testimony as to whether
the injuries for which the physician treated the patient are causally related to the accident are within the scope of the
patient’s care and treatment”]; Sullivan v Glock, 175 FRD 497, 501 [“To the extent that the source of the facts which
form the basis for a treating physician’s opinions derive from information learned during the actual treatment of the
patient--as opposed to being subsequently supplied by an attorney involved in litigating a case involving the
condition or injury--then no [written report] should be required”]; Sprague v Liberty Mutual Ins. Co., 177 FRD 78,
supra [“While all experts must be disclosed under Rule 26 (a) (2) (A), only ‘retained’ experts must provide Rule 26
(a) (2) (B) reports” and plaintiff’s expert witnesses are treating physicians and a treating psychologist from whom no
reports are required for opinions formed on the basis of their treatment of plaintiff, but from whom reports are
35.
Courts have differed over whether a treating physician compensated reasonable fees by a party
for time spent testifying is thereby necessarily “retained” or “specially employed” by the party
for purposes of Rule 26 (a) (2) (B): compare, Smith v State Farm Fire and Cas. Co. (164 FRD
49, 55-56) (holding in the affirmative) with Brown v Best Foods, Inc. (169 FRD 385, 388 n 3)
and Sprague v Liberty Mutual Ins. Co. (177 FRD 78, 81) (holding in the negative).
required with respect to any particular opinion for which plaintiff has specially retained them]; Brundidge v City of
Buffalo, 79 F Supp 2d 219 [treating physician not disclosed as expert pursuant to Rule 26 [a] [2] [B] may offer
opinion as to what caused plaintiff’s mental problems so long as her opinion is based solely on treatment of
plaintiff]; Peck v Hudson City School Dist., 100 F Supp 2d 118, 121 [treating physician who testifies only as to care
and treatment of patient not subject to written report requirements of Rule 26 [a] [2] [B]; “[h]owever, when the
doctor’s opinion testimony extends beyond the facts disclosed during care and treatment of the patient and the
doctor is specifically retained to develop opinion testimony, he or she is subject to the provisions of Rule 26 [a] [2]
[B]”]).
One district court, however, has specifically drawn the distinction between fact and opinion urged by the
State here, and has found that a treating physician “cross[es] over the boundary to become the sort of expert as to
whom [expert] disclosure is required” when offering opinion testimony on causation, diagnosis and prognosis
(Thomas v Consolidated Rail Corp., 169 FRD 1, 3). In Thomas, defendant moved to preclude expert testimony
from three of plaintiff’s potential witnesses, two treating physicians and a treating physical therapist, for failure to
provide the Rule 26 (a) (2) (B) written report. The Court concluded that written reports were required for these
expert witnesses because “the three witnesses will be offering their testimony, at least in part, not merely based on
observations made during the course of treatment, but on professional expertise going beyond treatment per se. For
example, it seems that plaintiff intends to offer opinion testimony of all three witnesses regarding causation and
prognosis” (id.). Because “a colorable though unpersuasive argument can be made based on the advisory notes that
no report is required under any circumstances pursuant to the mandate of Rule 26 (a) (2) (B) for a treating
physician” (id., at 4), the court denied defendant’s motion to preclude and set a deadline for plaintiff to convey the
written reports for these expert witnesses (cf., Widhelm v Wal-Mart Stores, Inc., 162 FRD 591, 594 [where plaintiff
failed to designate her treating physicians as expert witnesses in a timely manner and did not provide defendant with
promised written reports and defendant moved to strike, court noted that while a treating physician may testify as an
expert to the treatment given, “in this case, plaintiff has expanded that role and is attempting to solicit expert
testimony about causation and plaintiff’s permanent disability rating. That will not be permitted. The treating
physicians will only be allowed to testify about their treatment of plaintiff and the fairness and reasonableness of
their bills”]; Rebolledo v Herr-Voss Corp., 101 F Supp 2d 1034 [treating physician, who was not identified as an
expert witness pursuant to Rule 26 (a) (2) and for whom no written report was provided as required by Rule 26 (a)
(2) (B), may only testify as to observations made during the course of treating plaintiff and as to matters within his
personal knowledge]).
B. New York case law
In Nesselbush v Lockport Energy Assocs. (169 Misc 2d 742), the plaintiff resisted CPLR 3101 (d) (1) (i)
disclosure for his treating physicians. After what remains the most extensive published discussion in New York
case law of whether a treating physician is subject to CPLR 3101 (d) (1) (i) disclosure, the trial court (Justice
Barbara Howe) denied the motion “without prejudice to any discovery which defendant may seek concerning
plaintiff’s treating physician(s) pursuant to other provisions of the CPLR” (id., at 745).
The court cited First Department case law as support for the proposition that CPLR 3101 (d) (1) (i) only
applies to retained witness experts; specifically, Santariga v McCann (161 AD2d 320, 321) (report prepared by
defendant’s non-testifying expert not subject to disclosure pursuant to CPLR 3101 [d] [1] [i] because “[c]lause [i]
only applies to litigation experts retained to testify at trial”); and Rios v Red Apple Supermarket, NYLJ, Dec. 7,
1994, at 30, col 3 (In Rios, “[t]he Appellate Term, First Judicial Department, relying on Santariga, has concluded
that a plaintiff’s treating physician [is] not an expert retained for litigation purposes as contemplated by the statute”
[Nesselbush v Lockport Energy Assocs., supra, at 743]). The court then voiced general agreement with the
Appellate Term in Rios “[f]or the reasons which follow,” comprising the observation that “[t]he role of the treating
physician has nothing inherently to do with the process of litigation” (id.) and consideration of CPLR 3101 (d) (1)
(i)’s background in Advisory Committee Notes and Federal case law.
First, the court looked to the statement in the Advisory Committee Notes accompanying the 1970
amendments, which counseled that an expert who acquired information as an actor or viewer of the transaction or
occurrence at issue was excluded from the purview of Rule 26 (b) (4) (id., at 743-744). Next, the court pointed to
the Federal district court opinions in Baker v Taco Bell Corp. (163 FRD 348, supra) (a post-1993 amendments case)
and Sipes v United States (111 FRD 59, supra) (a post-1970 amendments case) to support the proposition that a
treating physician is not transformed from an actor/viewer into an expert from whom Rule 26 disclosure (i.e., a
statement post-1970 and a written report post-1993) is required merely because he possesses an opinion on causation
or the like; and noted that a witness might be an expert as to some matters and an actor/viewer as to others, citing
Quarantillo v Consolidated Rail Corp. (106 FRD 435, supra), Nelco v Slater Elec. (80 FRD 411, supra) and Patel v
Gayes (984 F2d 214, supra) (all post-1970 amendments cases). “[F]inding the reasoning of these Federal
authorities construing the expert discovery provisions of rule 26 (b) (4) of the Federal Rules of Civil Procedure,
which is the Federal counterpart and progenitor of CPLR 3101 (d) (1) (i), to be entirely persuasive, and . . . see[ing]
no reason for construing CPLR 3101 (d) (1) (i) differently,” the court “conclude[ed] that subsequent treating
physicians need not be disclosed as experts retained to testify at trial under CPLR 3101 (d) (1) (i) to the extent that
they will be testifying at trial, if at all, as ‘percipient fact witnesses’ ” (id., at 744-745).
The Fourth Department squarely addressed the status of the treating physician under CPLR 3101 (d) (1) (i)
for the first time in Rook v 60 Key Centre, Inc. (239 AD2d 926). On a cross-appeal from the trial court’s order
denying a motion to preclude the testimony of various experts determined to be treating physicians, the appellate
court “reiterate[d] that CPLR 3101 [d] [1] applies only to experts retained to give opinion testimony at trial, and not
to treating physicians, other medical providers, or other fact witnesses” (id., at 927; see also, 67 Siegel’s Practice
Review, Treating Physician Not Deemed Expert for Purposes of CPLR 3101 [d] [1] [i], at 4 [Feb. 1998]). To
support its conclusion in Rook, the Fourth Department cited its decision in Wylie v Consolidated Rail Corp. (229
AD2d 966) (in ruling that trial court erred by precluding testimony of defense witness, a radiologist who interpreted
CT scan performed on plaintiff, court rejected plaintiff’s argument that radiologist was not a treating physician and
“therefore could have testified only if he had been disclosed as an expert witness pursuant to CPLR 3101 [d] [1],
which, concededly, he was not;” and noted that plaintiff at trial had inconsistently argued that radiologist should not
be permitted to testify because of ethical considerations prohibiting a defendant from contacting a plaintiff’s treating
physician during pre-trial discovery), as well as the Third Department’s decision in Beck v Albany Med. Ctr. Hosp.
(191 AD2d 854) (trial court did not err in permitting defendants to call plaintiff’s treating physician as an expert
witness notwithstanding failure to disclose his identity pursuant to CPLR 3101 [d] because plaintiff had subpoenaed
him and used one of his reports at trial and therefore was not surprised by the content of his testimony, which was
limited in any event to his own medical treatment and observations [dictum]); the trial court’s decision in
Nesselbush; and (for comparison) the First Department’s decision in Santariga.
The Fourth Department issued three decisions after Rook to similar effect: Stark v Semeran (244 AD2d
894, lv dismissed 91 NY2d 956) (“Because defendant doctor was plaintiff’s treating physician, rather than an expert
retained to give opinion testimony at trial, CPLR 3101 [d] [1] [i] does not bar the admission of his expert
testimony;” therefore, trial court erred in precluding defendant doctor from testifying on causation); Casey v Tan
(255 AD2d 900, 901) (trial court erred in relying upon CPLR 3101 [d] [1] [i] to preclude decedent’s subsequent
treating physician from testifying for defendant concerning proximate cause because “that section applies only to
experts retained to give testimony at trial, and not to treating physicians”); and Bonner v Lee (255 AD2d 1005)
(“Because the witness was one of plaintiff’s treating physicians, CPLR 3101 [d] [1] does not apply;” therefore, trial
court did not err in refusing to preclude plaintiff’s treating physician from testifying regarding her interpretation of
plaintiff’s MRI).
In Overeem v Neuhoff (254 AD2d 398), the Second Department decided that the trial court had erred by
precluding medical testimony as to causation from a treating physician whom plaintiff had not identified as an
expert pursuant to CPLR 3101 (d) (1) (i), although his medical records had been exchanged pursuant to 22 NYCRR
202.17. The court held that “[b]ecause [the witness] was the plaintiff’s treating physician, rather than an expert
retained to give opinion testimony at trial, CPLR 3101 (d) (1) (i) does not bar the admission of his expert testimony”
(id., at 400; see also, 87 Siegel’s Practice Review, Treating Physician Set to Be “Expert” At Trial Need Not Be So
Identified Under CPLR 3101 [d] [1] [i], at 4 [Sept. 1999]). As support for its ruling, the Second Department cited
the Fourth Department’s decisions in Stark, Rook and Wylie; the First Department’s decision in Schwartz v Tab
Operating Co. (239 AD2d 244) (trial court’s ruling not to preclude testimony of plaintiff’s expert for failure to
comply with CPLR 3101 [d] [1] [i] was proper exercise of discretion where testimony was limited to what was
contained in expert’s records for which defendants had been furnished authorizations); and the trial court’s decision
in Nesselbush.
The Second Department has issued two additional decisions citing both Overeem and certain of the
previously discussed Fourth Department cases, and dealing generally with the question of whether a treating
physician falls within the scope of CPLR 3101 (d) (1) (i): Mantuano v Mehale (258 AD2d 566, 567) (trial court
erred in relying upon CPLR 3101 [d] [1] [i] to preclude plaintiff’s treating physician from offering his opinion about
causation because “this rule applies only to experts retained to give testimony at trial, and not to treating
physicians”); and Krinsky v Rachleff (276 AD2d 748) (treating physician may give expert opinion testimony without
prior notice pursuant to CPLR 3101 [d]).
In McGee v Family Care Servs. (246 AD2d 308), the First Department considered whether the trial court
had properly denied defendant’s motion to strike plaintiff’s note of issue and certificate of readiness for failure to
disclose his expert witnesses. In opposition, plaintiff had designated his treating physician as his expert, and the
trial court ruled that such disclosure afforded defendant sufficient notice of the expert’s projected testimony by
reason of having been previously furnished his reports and records. The appellate court agreed and, in an
alternative ruling citing the Fourth Department’s decision in Rook as authority, “add[ed] that the motion could have
been denied because disclosure with respect to treating physicians is governed by CPLR 3121 and 22 NYCRR
202.17, not CPLR 3101 (d) (1).”
Subsequently, in Ryan v City of New York (269 AD2d 170), the First Department reversed the trial court’s
dismissal of an action following the preclusion of plaintiff’s two treating physicians’ testimony on proximate cause.
The plaintiff had complied with 22 NYCRR 202.17 for both physicians, but had not served a CPLR 3101 (d) (1) (i)
response; therefore, the defendant argued that these doctors could testify regarding their examinations and treatment,
but could not offer their opinions as to proximate cause. The appellate court did not subscribe to the proffered
distinction between fact and opinion: “When the plaintiff’s intended expert witness is a treating physician whose
records and reports have already been fully disclosed pursuant to CPLR 3121 and 22 NYCRR 202.17, the failure to
serve CPLR 3101 (d) notice regarding that physician does not justify precluding the expert’s testimony on the issue
of causation, since the defendant has sufficient notice of the proposed testimony, and neither surprise nor prejudice
would result” (id., at 170-171). As authority for this ruling, the First Department cited its decision in McGee; and
also the Second Department’s decisions in Overeem and Mantuano; and its decision in Freeman v Kirkland (184
AD2d 331) and the Second Department’s decision in Cutsogeorge v Hertz Corp. (264 AD2d 752), both of which
emphasize that preclusion is not warranted for non-willful failure to comply with CPLR 3101 (d) (1) (i) where no
surprise or prejudice results.
Unlike the Fourth, Second and First Departments, the Third Department--the relevant appellate venue for
purposes of this claim (see, n 29, supra)--has neither specifically discussed whether a treating physician is subject to
CPLR 3101 (d) (1) (i) disclosure nor considered the interplay of this provision with CPLR 3121 and 22 NYCRR
202.17: Chapman v State of New York (189 AD2d 1075) and Ingleston v Francis (206 AD2d 745), the two cases
cited by the State, both presuppose that a treating physician falls within the scope of CPLR 3101 (d) (1) (i) (see also,
Beck v Albany Med. Ctr. Hosp., 191 AD2d 854, supra).
In Chapman, the State moved to preclude claimants’ CPLR 3101 (d) (1) (i) response for a treating
physician on the grounds of inadequacy; the Court of Claims denied the motion; and the Third Department held that
claimants’ responses were “wholly inadequate” and remitted the matter to the lower court “[b]ecause the conclusion
that claimants failed to comply with the State’s [CPLR 3101 (d) (1) (i)] notice does not require the unconditional
grant of the State’s preclusion motion” (see also, Chapman v State of New York, 227 AD2d 867, supra, a subsequent
appeal in the same case).
When the plaintiff in Ingleston did not provide defendant with a CPLR 3101 (d) (1) (i) response
designating his treating physician as his expert until one week prior to trial, the trial court precluded the treating
physician’s testimony for untimeliness and dismissed the complaint on the grounds that plaintiff consequently could
not prove serious injury or proximate cause. Noting a trial court’s wide latitude in administering pre-trial
discovery, the court observed that “[h]ere, plaintiff failed to timely disclose the identity of her expert [i.e., her
treating physician], his qualifications, the subject matter on which the expert would testify and the grounds for his
opinion. Under the circumstances, Supreme Court was fully within its authority to preclude plaintiff from
introducing the expert testimony” (id., at 745-746). The court did, however, reverse so much of the trial court’s
order as granted defendant’s motion to dismiss, finding other available evidence from which plaintiff might establish
a prima facie case of serious injury and the basis for a jury to find proximate cause (i.e., testimony of defendant’s
expert, whom plaintiff was free to call, and plaintiff’s testimony, respectively).
C. Discussion
From the preceding Cook’s tour of Federal and state expert discovery law, the Court draws the following
conclusions relevant to resolving the State’s motion to preclude:
(1) Rule 26 in both its 1970 and 1993 incarnations is an integral part of a Federal discovery scheme
different in so many important respects from Article 31 of the CPLR that Rule 26 (b) (4) (A), as adopted in 1970,
furnishes but sparing interpretive guidance for CPLR 3101 (d) (1) (i), notwithstanding an identity of language and
common purposes (see, e.g., Chapman v State of New York, 227 AD2d 867, 868-869, supra [purpose of CPLR 3101
(d) (1) (i) is to facilitate effective cross-examination and rebuttal testimony, citing Uresil Corp. v Cook Group (135
FRD 168), which construes Rule 26 (b) (2) (A)]; disclosure of expert witnesses and their opinions “encourages
prompt settlement by providing both parties an accurate measure of the strength of their adversaries’ case” and
discourages both parties from “asserting unsupportable claims or defenses, knowing that they will be required to
disclose what, if any, expert evidence will support their allegations” [Governor’s Approval Mem, 1985 McKinney’s
Session Laws of New York, at 3025]). That having been said, this Court is struck by the Federal courts’ consistent
unwillingness to exclude treating physicians categorically from the scope of expert witness discovery under Rule 26
(b) (4) (A) (1970 version) or Rule 26 (a) (2) (B) (1993 version), or to limit their testimony strictly to facts
ascertained and observations made during treatment when they testify as actors/viewers rather than as these kinds of
Rule 26 experts. In the Court’s view, therefore, Federal precedents provide no basis for concluding either that
CPLR 3101(d) (1) (i), which is modeled after Rule 26 (b) (4) (A) (1970 version) (see, Chapman v State of New York,
supra, at 868-869), does not ever cover an expert who is a treating physician--as Ingersoll argues--or that a treating
physician not identified as an expert is a fact witness who may never give opinion testimony about causation,
prognosis or permanency of an injury--as the State argues.
The Court also finds no support for the parties’ respective positions in the language or purpose of CPLR
3101 (d) (1) (i). First, CPLR 3101 (d) (1) (i), unlike its Federal counterparts, is not qualified by any language
limiting its scope to those experts who acquired or developed facts and opinions in anticipation of litigation or for
trial, or to retained or specially employed experts.36 CPLR 3101 (d) (1) (i) provides for relief from preclusion for
good cause shown when a party “retains an expert an insufficient period of time before the commencement of trial
to give appropriate notice thereof (emphasis added);” however, there is no reason to read this provision as implicitly
modifying the language in the preceding sentence, which mandates expert disclosure for “each person whom the
party expects to call as an expert witness at trial,” and not for “each person whom the party has retained to call as an
expert witness at trial” (cf., 6 Weinstein-Korn-Miller, NY Civ Prac ¶ 3101.52a, at 31-204 (relief from preclusion for
good cause shown applies only to “an expert retained shortly before trial, not to one who has assisted in preparing
the case but was only classified as a trial expert at the last minute”).
Next, a treating physician’s opinions about causation, diagnosis and prognosis or permanency of injury are,
after all, conclusions reached by reasoning from known facts as informed by medical training and experience. As a
practical matter, a physician’s observations and inferences are often so intimately blended as to defy distinguishing.
The purpose underlying CPLR 3101 (d) (1) (i), which is essentially to prevent trial by ambush, would therefore
seem better served by assuring fair warning of the expert’s opinion than by trying to tease fact apart from opinion,
an often dubious exercise.
(2) The Fourth and Second Departments have decided that CPLR 3101 (d) (1) (i) applies only to retained
experts and a treating physician by definition is not a retained expert; therefore, CPLR 3101 (d) (1) (i) per se does
not apply to a treating physician. Rook v 60 Key Centre, Inc. (239 AD2d 926, supra) and its progeny in the Fourth
Department and Overeem v Neuhoff (254 AD2d 398, supra) and its progeny in the Second Department simply do
not readily admit of an alternative reading.
The First Department, however, seems to have taken a slightly different tack in Ryan v City of New York
(269 AD2d 170, supra) by emphasizing that failure to comply with CPLR 3101 (d) (1) (i) for a treating physician
does not justify precluding opinion testimony so long as the treating physician’s records and reports have been
disclosed pursuant to CPLR 3121 and 22 NYCRR 202.17. Thus, the First Department focuses not on the expert’s
status as a treating physician, but on whether disclosure functionally equivalent to that required by CPLR 3101 (d)
(1) (i) has, in fact, been made under other provisions of the CPLR.
As noted earlier, the Third Department’s decisions in Chapman v State of New York (189 AD2d 1075,
supra) and Ingleston v Francis (206 AD2d 745, supra) presuppose that a treating physician is subject to the
disclosure requirements of CPLR 3101 (d) (1) (i). The State therefore argues that the Third Department has--at
least implicitly--decided that CPLR 3101 (d) (1) (i) disclosure is required for a treating physician, who may not give
opinion testimony absent such disclosure.
This Court is unwilling to read quite so much into either opinion: every decision depends on the
contingencies of its particular record and in both Chapman and Ingleston, the parties apparently did not present the
appellate court with reason to consider whether CPLR 3101 (d) (1) (i) applies to a treating physician by assuming
that it does. Specifically, in Chapman, which featured a pro se claimant, the argument focused solely on whether
the CPLR 3101 (d) (1) (i) disclosure made was adequate; in Ingleston, on whether it was timely.
In light of the differing appellate precedents outside the Third Department and the absence of directly
relevant Third Department authority, this Court chooses to follow the approach taken by the First Department,
which makes fair warning the touchstone of whether preclusion is warranted for failure to make CPLR 3101 (d) (1)
(i) disclosure for a treating physician; and does not deal differently with testimony about facts and opinions based on
those facts. The relevant inquiry for this claim, therefore, is whether the State had sufficient notice from the
hospital record37 (or otherwise) about Dr. Klemens’ subsequently proffered testimony that Ingersoll suffered
36.
As already noted, Federal courts have in any event not tended to interpret such language as
affording treating physicians a blanket exemption from expert witness disclosure under Rule 26.
37.
Ingersoll provided the State written authorization for the hospital record.
dizziness and hearing deficits as a result of her exposure to streptomycin, and that these adverse side effects
persisted after administration of this drug ceased and were permanent injuries.
The hospital record is rife with notations from Dr. Klemens, as well as from Drs. Fruehan and Schwab,
observing that Ingersoll suffered profound dizziness and hearing difficulties immediately after and likely as a result
of receiving a dose of streptomycin intravenously on July 29, 1995 (Exh. 1-000049, 000050, 000059). The
consulting and attending neurologists and the consulting ENT physician who examined Ingersoll on July 31, 1995
similarly concluded that the vestibular and auditory symptoms that she was exhibiting were likely streptomycin
induced (Exh. 1-000056, 000054, 000058). Additionally, in her Discharge Summary for Ingersoll, Dr. Klemens
plainly expresses her observations and opinions that Ingersoll
was started on Streptomycin intravenously during her hospitalization.
She had previously received two months of IV Streptomycin as an
outpatient prior to admission. Unfortunately during the hospitalization
she developed severe vertiginous symptoms which were felt to be
secondary to the Streptomycin. She was seen in consultation by both
Neurological and ENT who confirmed vestibular ototoxicity, probably
secondary to Streptomycin.
(Exh. 1-000004).
Moreover, Dr. Oxtoby’s testimony at the liability trial alerted the State to Dr. Klemens’ opinion that Ingersoll had
suffered severe side effects, including vestibular and ototoxicity-related symptoms, as a result of her regimen of
anti-TB drugs (L 116-118).
Thus the State could not have been surprised or prejudiced by Dr. Klemens’ testimony to the effect that
Ingersoll suffered dizziness and hearing deficits as a result of her exposure to streptomycin while in the hospital.
The Court therefore declines to preclude her testimony in this regard (see, Hansel v Lamb, 257 AD2d 795 [trial court
did not abuse its discretion by permitting defendant to elicit opinion testimony from fact witness notwithstanding
failure to disclose intention to do so pursuant to CPLR 3101 [d] [1] [i] because plaintiff could not show surprise and
there is no indication that defendant intentionally or willfully withheld notice that this proof would be offered];
Marra v Hensonville Frozen Food Lockers, 189 AD2d 1004, 1006 [that CPLR 3101 [d] [1] [i] specifically bars
preclusion of untimely disclosure of a retained expert’s testimony when good cause is shown “does not imply that
[the trial court]’s discretion is otherwise restricted in determining whether to impose the sanction of preclusion for a
failure of timely disclosure regarding expert testimony”]; see also, Schwartz v Tab Operating Co., 239 AD2d 244,
supra).
Dr. Klemens’ testimony that Ingersoll suffered permanent symptoms of dizziness with attendant nausea and
hearing loss as a result of streptomycin exposure is more problematic because this opinion does not manifest itself in
the hospital record. Nonetheless, Dr. Klemens’ opinion in this regard arguably may be reasonably inferred from the
comment in her outpatient progress note for Ingersoll’s hospital clinic visit on April 12, 1996 that “[b]aseline ataxia
hearing loss presumed [secondary to] SM tx” (Exh. 2-000225), and thus has sufficient (if minimal) basis in material
to which the State had access to avoid preclusion (cf., Valentine v Lopez, 2001 N Y App Div LEXIS 4848 [where
medical records clearly indicate that focus was on condition of plaintiff’s right wrist, trial court did not abuse its
discretion by precluding expert testimony about symptoms and diagnoses related to plaintiff’s left wrist when this
testimony was neither detailed nor suggested in expert witness disclosure]). The Court, however, gives this
testimony no weight for the following reasons:
(1) Ingersoll exhibited obvious vestibular side effects and hearing deficiencies on July 29, 1995, and her
treating physicians immediately discontinued plans for administering further intravenous doses of streptomycin to
her (Exh. 1-000059, 000061). Although initially severe, her symptoms apparently substantially subsided within a
few days. For example, the attending neurologist and the consulting ENT physician who examined Ingersoll on
July 31, 1995 both reported various symptoms denoting dizziness upon physical examination (e.g., nystagmus; a
positive Romberg’s sign) (Exh. 1-000054, 000058), but the report for the ENG performed on Ingersoll on August 2,
1995 includes a finding of “ENG within normal limits” (Exh. 1-000212). The audiogram performed on Ingersoll
on August 1, 1995 (Exh. 1-000069) produced results identical to those from her audiogram of July 10, 1995, which
“could not be proven [secondary] to SM therapy since no previous hearing tests were performed” (Exh. 1-000062).
(2) The consulting ENT physician who examined Ingersoll on July 31, 1995 observed that if she required
further treatment with streptomycin, then “her symptoms will likely progress & become irreversible” (Exh.
1-000058), not that they were already permanent. Of course, streptomycin was last administered to Ingersoll on
July 29, 1995.
(3) The ENT physician who examined Ingersoll on September 30, 1996 noted that she denied vertigo and
did not exhibit nystagmus, and reported that the ENG performed on September 4, 1996 was within normal limits
(Exh. 2-000229). Although Dr. Klemens testified to a conversation in 1996 with an ENT physician who “felt that
[Ingersoll] still had significant vestibular side effects although it appear[ed] that she was better compensating in
terms of her balance and walking” (D 89), the ENT physician who examined Ingersoll on September 30, 1996 (five
months after Dr. Klemens last examined Ingersoll) found that she was recovering or had recovered from previous
possible vestibular ototoxicity (Exh. 2-000229).
(4) Ingersoll’s audiogram from April 30, 1996 showed a moderate high frequency bilateral hearing loss
(Exh. 1-000070), which is to say that the results of this audiogram were identical to the results from her two
previous audiograms performed on July 10, 1995 (Exh. 1- 000062) and August 1, 1995 (Exh. 1-000069; see also,
Exh. 1-000063, 000064).38
(5) The hospital record shows that Dr. Klemens had but five contacts with Ingersoll in the hospital, and
Ingersoll visited her at the hospital clinic twice, the last time in April 1996. As a result, Dr. Klemens had not
examined Ingersoll at any time in the four years preceding her testimony. Her opinion attributing Ingersoll’s
persistent dizziness and nausea to prior streptomycin exposure was therefore necessarily offered without
consideration of the course of Ingersoll’s coronary artery disease (she was, after all hospitalized in the summer of
1995 when a ventricular arrhythmia rendered her so light-headed or dizzy that she lost consciousness) and possible
side effects from the seven different medications that she was taking for her heart ailments and arthritis (L 32-34,
39-41; D 33-34).
(6) In any event, Dr. Klemens specializes in diagnosing and treating infectious diseases, not vestibular
symptoms or hearing problems or heart disease.
IV. Conclusion
In fashioning compensation for claimant’s erroneous treatment for TB and its short-term consequences, the
Court recognizes that “personal injury awards, especially those for pain and suffering, are not subject to precise
quantification” (Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780, 782, lv dismissed 92 NY2d 942; see, Kahl v
MHZ Operating Corp., 270 AD2d 623). Although no two cases are alike, in Reape v City of New York (228 AD2d
659) the plaintiff was also misdiagnosed with TB and underwent a course of treatment causing temporary side
effects. The First Department, noting, among other things, plaintiff’s age, the absence of any permanent injuries
and the fact that the adverse side effects “disappeared even while he was being treated” (id., at 660) reduced a
$1,000,000 jury verdict to $60,000 (see, id.; compare, Ogle v State of New York, 191 AD2d 878). In this instance,
Ingersoll, who was elderly and afflicted with various serious heart problems, suffered nausea, weight loss and loss of
appetite during and in the immediate aftermath of the three to four months of her treatment with anti-TB drugs. For
two months she underwent painful intramuscular injections of streptomycin, which caused severe gluteal bruising.
Immediately after she received an intravenous injection of streptomycin on July 29, 1995, she experienced profound
dizziness and hearing difficulties. A PICC line was inserted in her body on July 27, 1995 only to be removed “with
difficulty” on August 2, 1995 (Exh. 1-000065). The unnecessary anti-TB drug therapy complicated her
hospitalization and treatment from July 19 until August 3, 1995 for what was diagnosed as ventricular arrhythmia.
Based on the foregoing, the Court denies the State’s motion to preclude, and awards damages for
Ingersoll’s pain and suffering as a result of the temporary side effects of anti-TB therapy in the amount of $120,000.
The Court further exercises her discretion to set interest on this award at the presumptively reasonable statutory rate
of 9 % (see, State Finance Law § 16; Rodriguez v New York City Housing Authority, 91 NY2d 76) to run from
September 22, 1999, the date of the liability decision. Any remaining motions on which the Court previously
reserved judgment are now denied. The Chief Clerk is directed to enter judgment accordingly.
June 4, 2001
Albany, New York
HON. SUSAN PHILLIPS READ
Judge of the Court of Claims
38.
Ingersoll was unable to recall whether she first noticed her hearing loss before or after her TB
treatment began (D 31; L 29).