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NY: Patient Stopped Breathing in Surgery: Is "Nobody was Paying Attention" Admissible?

CASE FACTS: Linda Nucci brought suit for medical malpractice against Dr. Gilbert Proper, an anesthesiologist, and Rochester General Hospital on behalf of Joseph Nucci who had stopped breathing when he was extubated in the operating room at the hospital. The plaintiff contended that the patient's condition went unnoticed for several minutes, causing irreversible brain damage. The defendants contended that the patient was treated immediately but that his heart went into electromechanical disassociation, which resulted in the injury. During the trial, the court excluded testimony by a relative of the patient concerning a conversation with an anesthesia technician intern two days after the incident. In that conversation the intern allegedly stated that "nobody was paying attention" to the patient while he was in respiratory distress. The testimony was proffered by the plaintiff as evidence-in-chief. The trial court ruled that "out of court oral statements of a witness may not be introduced as evidence-in-chief." After a jury trial the Supreme Court, Monroe County, granted the plaintiff's motion to set aside the verdict, and ordered a new trial. The defendants appealed.

COURT'S OPINION: The Supreme Court of New York, Appellate Division, reversed the lower court. The court held that the out of court statement by the anesthesia technician intern at the hospital that "nobody was paying attention" to the patient when he stopped breathing was not admissible during the plaintiffs case-in-chief under any exception to the hearsay rule for prior inconsistent statements, and that the testimony in any event was conclusory and thus inadmissible. The court found that the trial court's initial ruling concerning the inadmissibility of the intern's prior statement was proper. That statement was inadmissible because it was not "made in a writing subscribed by the intern or ... made under oath." The court cited a similar case in which it had determined that a prior inconsistent statement in the required statutory form was admissible as evidence-in-chief because the "declarant himself was present in court, subject to the oath and the safeguard of cross-examination." The court further noted that the statement was conclusory and thus not admissible. Generally, witnesses may only testify concerning "facts and not to their opinions and conclusions drawn from the facts." The court rejected the plaintiffs contention that the verdict was against the weight of the evidence. Accordingly, the court reversed the trial court and ordered a new trial. Nucci v. Proper, 708 N.Y.S.2d 144 - NY (2000)

Meet the Editor & Publisher: A David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.
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Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Article Type:Brief Article
Geographic Code:1USA
Date:May 1, 2000
Words:520
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