The New York Appellate Division, Second Department, has, once again, ruled that the scope of a Frye hearing regarding a plaintiff’s theory of causation in a medical malpractice action is limited only to whether or not the expert’s opinion is based on generally accepted scientific principles, as opposed to the expert’s own unsupported beliefs. Specifically, plaintiff is not required to produce medical literature that demonstrates causation under parallel circumstances, but rather, an expert’s testimony must be allowed where a synthesis of various studies or cases permits the expert to reach such a conclusion.
In Lugo v. New York City Health & Hospitals Corp.,decided on September 13, 2011, the infant plaintiff indisputably suffered spastic diplegia type cerebral palsy, resulting in developmental delays and confirmed by abnormal findings on an MRI of his brain. He had been born with excellent Apgar scores, but experienced tremors when he was 40 minutes old. He was ultimately diagnosed in the NICU with a blood glucose level of 3 mg/dl (40 mg/dl being normal). After being given an infusion of glucose, his glucose level rose to a normal amount approximately one hour and twenty minutes after his birth.
The theory of plaintiff’s case was that the hospital’s failure to timely diagnose and treat the infant’s hypoglycemia caused his brain injury. The hospital’s attorneys successfully moved the Motion Court for a Frye hearing, supported by affidavits from its experts stating their opinion that a transient episode could not cause the type of brain injury seen on the infant’s MRIs. Following the hearing, the Motion Court precluded plaintiff’s experts from testifying with regard to their theory of causation, and dismissed the case, finding that plaintiff failed to provide “authoritative” medical literature that supported the theory that a “short episode” of hypoglycemia could have caused the infant’s brain injury.
The Appellate Division, Second Department, reversed and reinstated the action, ruling that the Court erred in requiring plaintiff to produce medical literature supporting its conclusion which involved circumstances parallel to those at issue in the case. Rather, proof that the plaintiff’s theory was based on accepted scientific principles involving medicine was sufficient to require denial of defendant’s motion.
Thus, even though plaintiff failed to produce a single case or study reporting occurrence of brain injury caused by one episode of hypoglycemia lasting 81 minutes or less, or any literature expressly supporting such a theory, plaintiff’s proof that the expert’s opinion was based on a synthesis of the medical literature required denial of defendant’s motion. Specifically, the Court found that plaintiff’s theory was based on several generally accepted scientific principles, namely that 1) hypoglycemia causes brain injury; 2) certain infants are more susceptible than others to neurological injury and 3) hypoglycemia is a toxic state with no safe level. In addition, the Court ruled that the medical literature relied upon by the experts need not be identified as authoritative. For these reasons, the Court reversed, stating that difference of medical opinions in the case must be determined at trial by a jury.