Getting Precluded Medical Records Into Evidence

Obstacles are thrown in your path from all directions at trial. What happens when the plaintiff's attorney refuses to stipulate to the admission into evidence of the plaintiff's own medical records and you cannot obtain a fact witness to authenticate the records, nor can you offer the records under C.P.L.R. 3122(a) because the records cannot be subpoenaed to court? Your expert has listed the missing records in the material he or she reviewed to form the basis of their expert opinion and the plaintiff now moves to preclude your expert under Wagman v. Bradshaw, 292 A.D. 2d 84 (2d Dept. 2002). Is all lost?

No--- In Wagman, the Court states:

It is well settled that, to be admissible, opinion evidence must be based on one of the following: first, personal knowledge of the facts upon which the opinion rests; second, where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination; and fourth, material not in evidence provided the out-of-court material is of the kind accepted in the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability. It is this fourth basis for positing an opinion, commonly known as the "professional reliability" basis, which is implicated in this matter, and which has resulted in confusion with respect to the use of secondary evidence in this department (see, Hambsch v. New York City Tr. Auth., 63 N.Y. 723,(1984); Romano v. Stanley, 90 N.Y.2d 444, 452 (N.Y. 1997); Serra v. City of New York, 215 A.D.2d 643, 644 (N.Y. App. Div. 2d Dept. 1995); Flamio v. State of New York, 132 A.D.2d 594, (N.Y. App. Div. 2d Dept. 1987).

Under the professional reliability exception, material not in evidence may be used to formulate an expert's opinion provided that the material not in evidence is of the kind accepted in the profession as a basis in forming an opinion, and the material not in evidence is accompanied by evidence establishing its reliability (see Hambsch, 63 N.Y.2d 723, at 726; People v. Sugden, 35 N.Y.2d 453, 460-461, (N.Y. 1974); Wagman, 292 A.D.2d 84, at 85; Scanga v. Family Practice Assocs. of Rockland, P.C., 27 A.D.3d 547, 548, (N.Y. App. Div. 2d Dept. 2006); DeLuca v. Ju Liu, 297 A.D.2d 307, (N.Y. App. Div. 2d Dept. 2002)).

In O'Brien v. Mbugua, 49 A.D.3d 937, 938 (N.Y. App. Div. 3d Dept. 2008), the court stated "It is well settled that hearsay testimony given by an expert ... for the limited purpose of informing the jury of the basis of the expert's opinion and not for the truth of the matters related is admissible" (People v. Wlasiuk, 32 A.D.3d 674, (N.Y. App. Div. 3d Dept. 2006), see People v. Wright, 266 A.D.2d 246, (N.Y. App. Div. 2d Dept. 1999).

Under the professional reliability exception, material not in evidence may be used to formulate an expert's opinion provided that the material not in evidence is of the kind accepted in the profession as a basis in forming an opinion, and the material not in evidence is accompanied by evidence establishing its reliability (see Hambsch, 63 N.Y.2d 723, at 726; People v. Sugden, 35 N.Y.2d 453, 460-461, (N.Y. 1974); Wagman, 292 A.D.2d 84, at 85; Scanga v. Family Practice Assocs. of Rockland, P.C., 27 A.D.3d 547, 548, (N.Y. App. Div. 2d Dept. 2006); DeLuca v. Ju Liu, 297 A.D.2d 307, (N.Y. App. Div. 2d Dept. 2002)).

Any challenge to the reliability of plaintiff's own records must be denied, given the fact that they were prepared by plaintiff's own personal physician who personally treated her. Cross Continental Medical, P.C. Allstate Ins. Co., 13 Misc.3d 10, 11 (N.Y. App. Term. 2006) (citing Hambsch 63 N.Y.2d 723, at 726). In Cross Continental Medical, P.C., the court held that "plaintiff may not be heard to argue that defendant's expert opinion was not derived from a 'professional reliable' source or to otherwise challenge the reliability of its own medical records and reports." Cross Continental Medical, P.C., 13 Misc.3d 10, at 11.