Marsh v. Smyth

12 A.D.3d 307, 785 N.Y.S.2d 440, 2004 N.Y. App. Div. LEXIS 14435

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 2004
• Status: Published

Opinions

Order, Supreme Court, New York County (Sheila AbdusSalaam, J.), entered December 10, 2002, which denied plaintiffs motion to charge the jurors on the doctrine of res ipsa loquitur, and order, same court and Justice, entered December 27, 2002, which granted defendants’ motion to preclude the testimony of plaintiffs experts and thereupon dismissed the complaint, reversed, on the law, without costs, the denial of plaintiffs motion vacated, defendants’ motion denied, the complaint reinstated, and the matter remanded for trial.

In December 1995, plaintiff underwent a hysterectomy to treat her ovarian cancer, following which she complained of severe pain and weakness in the right arm and shoulder, which was thereafter diagnosed as long thoracic nerve palsy. Plaintiff commenced this medical malpractice action alleging that the subject palsy was caused by the anesthesia team’s improper hyperabduction of her arm for an extended period while she was under general anesthesia.

Supreme Court erred in granting defendants’ pretrial motion to preclude the testimony of plaintiffs two medical experts, on the ground that their theories concerning the positioning of the arm during the surgery were not generally accepted in the medical field (see Frye v United States, 293 F 1013 [DC Cir 1923]; People v Wernick, 89 NY2d 111, 115-116 [1996]). Supreme Court went beyond the limited role of a Frye hearing, which is to determine whether the experts’ deductions are based on principles that are sufficiently established to have gained general acceptance as reliable (see People v Wesley, 83 NY2d 417, 422-423 [1994]), and intruded upon the jury’s realm of weighing the evidence (see id. at 426). The experts’ testimony, and the supporting medical literature, satisfied the Frye standard, and a jury should be permitted to hear the testimony and consider the doctrine of res ipsa loquitur (see States v Lourdes Hosp., 100 NY2d 208 [2003] [jury should hear expert testimony to assess res ipsa loquitur claim concerning the allegedly negligent hyperabduction of plaintiffs right arm during removal of ovarian cyst]). Concur—Buckley, EJ., Mazzarelli, Ellerin and Marlow, JJ.