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The case of Noseworthy v. City of New York 1is the seminal case in New York regarding a reduced burden of proof in a death case. The NoseworthyCourt held that a deceased plaintiff was entitled to a lesser burden of proof, where the death was the result of an accident allegedly due to the defendant’s negligence. Noseworthywas extended to amnesia situations by Schechter v. Klanfer, 2and the reduced burden of proof, implemented via a jury instruction in both scenarios, has come to be known as the Noseworthydoctrine. Theory and Rationale The Court in Noseworthyexplained that the rationale behind the reduction in the burden of proof was based on the notion that a tortfeasor should not benefit from his wrongdoing. Where a plaintiff can demonstrate that the accident in question resulted either in death or amnesia, courts will attempt to place the plaintiff in the same position as the defendant and in the same position the plaintiff would have been if the accident had not occurred. The question arises as to whether a reduction in proof is appropriate based merely on a demonstration that the accident caused the amnesia, without an a priori finding that the accident was due to the defendant’s negligence. Of course, requiring a finding of negligence before permitting a reduction in the burden of proof would place the cart before the horse and render the doctrine nugatory. Thus, the Court in Noseworthy, appeared to be more concerned with placing the parties at equal footing in terms of access to the facts, than making a preliminary finding about the merits of the case. Criteria and Application There are several procedural requirements that must be met for the Noseworthydoctrine to apply. First, plaintiff must show by clear and convincing evidence that the plaintiff suffered amnesia. Second, the plaintiff must demonstrate, by the same standard, that the amnesia or death was caused by the accident. Thus, pre-existing cognitive deficits may potentially vitiate the application of the doctrine. Similarly, the death of a plaintiff subsequent to an accident, if not caused by the accident, would not trigger the application of the doctrine. These issues are usually the subject of expert disclosure and testimony, with the jury being the decision maker on the issue. 3The higher standard of proof on these threshold issues is, perhaps, a quid pro quo for the impact of the charge and the possibility that the amnesia or deficit, while due to the accident, was not due to any negligence on the part of the defendant. The third prong of the Noseworthydoctrine requires that the plaintiff be prevented from having equal access to the facts as a result of the accident. Thus, the doctrine would not apply to an unwitnessed accident in which the defendant also has no or equally limited access to the facts. 4 Evidentiary Issues While the doctrine is typically employed via a jury instruction reducing the plaintiff’s burden of proof, it has at times been argued that once the threshold showing of applicability is met, other evidentiary rules such as the hearsay rule or the prohibition against leading one’s own witness should be relaxed as well. In Dunkak v. Wartburg Senior Housing, Inc., 5the Court held that while the Noseworthydoctrine may have relevance to burden of proof issues, it may not be used to alter evidentiary rules so as to make otherwise inadmissible evidence admissible. To the extent that evidentiary rules such as rules relating to leading one’s own witness are relaxed as a result of the cognitive disability, or hearsay proscriptions are relaxed due to the unavailability of the declarant, these evidentiary rules may be affected by the death or cognitive impairment of a witness. However, the decision to permit leading or admit hearsay in such a scenario would be based strictly on other evidentiary criteria and not due to any arguments based on Noseworthy. Effect The Noseworthydoctrine is neither a proof-shifting device, nor a mechanism whereby a case that would not otherwise qualify as sufficient from an evidentiary perspective, is transformed into one that does. The effect is strictly to permit more favorable inferences from circumstantial proof. In addition to the circumstantial proof charge, 6and the standard charge concerning the burden of proof, the following charge is given in cases involving amnesia: Plaintiff claims, however, that as a result of the injuries he sustained in the accident he is suffering from a loss of memory which makes it impossible for him to recall events at or about the time of the accident/occurrence. The plaintiff has the burden of proving by clear and convincing evidence that he is suffering from a loss of memory caused by the accident. This claim must be supported by the nature and extent of the injuries to the plaintiff, and you must be satisfied from the evidence that the plaintiff’s loss of memory was caused by the accident . . . . I instruct you that in proving his case against defendant, plaintiff is not held to as high a degree of proof as a plaintiff who could himself describe what happened. Thus, you are permitted greater latitude in inferring negligence on the part of the defendant from all the evidence in the case. 7 Thus, it is the permissibility of more remote inferences, rather than any shift in the burden of proof, that is triggered by the charge. Medical Malpractice In certain medical malpractice cases the defendant not only has superior access to the facts, but has exclusive control over them. For example, when a surgical instrument is left in a patient under anesthesia, Noseworthywould theoretically apply. Frequently, the plaintiff in such situations will request a res ipsa loquitor charge, obviating the need for a Noseworthyinstruction. 8Those few res ipsa cases aside, medical malpractice cases frequently focus on medical issues and are based on expert testimony, rather than on lay testimony, and the Noseworthydoctrine is not typically involved. However, one could envision fact-sensitive situations in medical malpractice cases in which Noseworthycould potentially apply. Zimmerman v. Mt. Sinai? 9involved an elderly hospitalized patient on fall precautions, who had an unwitnessed fall, and was found on the floor next to her hospital bed. Because plaintiff recalled nothing of the circumstances of the accident, she sought a Noseworthycharge. Since the accident was unwitnessed by any employees of the defendant, the court found that both sides had an equal lack of access to the facts surrounding the accident and for this and other reasons held that Noseworthydid not apply. Gap in Proof In an effort to remedy the gap in proof resulting from the inapplicability of the Noseworthydoctrine, plaintiff, through expert testimony, alleged that the patient’s attending physician prescribed various medications that potentially caused the plaintiff, upon rising from her bed, to become dizzy, and fall. The plaintiff simultaneously contended through the expert that the hospital failed to properly implement fall precautions by not maintaining the bed rails in a raised position, thereby resulting in the plaintiff inadvertently slipping out of bed and injuring herself. Plaintiff’s expert testified that each of these departures, more likely than not, increased the plaintiff’s risk of fall and injury. The court dismissed plaintiff’s claim at the close of plaintiff’s case, holding in part that since Noseworthydid not apply, the burden of proof should not be relaxed. The court further held that the expert testimony consisting of inconsistent theories as to how the accident occurred vitiated causation, leaving only speculation as to the cause of the accident. Plaintiff’s failure to exclude other non-negligent causes of the fall also undermined causation in the estimation of the court. 10 New York case law has long held that a trial court must permit a medical malpractice case to go to a jury if an expert testifies that a departure from accepted standards of medical care caused injury. The standard that causation testimony is held to is that a negligent act more likely than not negatively affected the patient’s outcome. 11While courts do not generally scrutinize the statements made by the expert on the subject of causation to evaluate their content, there are cases that hold that the testimony may not be conclusory. 12Implicit in the court’s ruling in Zimmermanis the ability of a court to look behind the verbiage of an expert’s statements to the content and import of the testimony. While many courts have held that expert testimony may not be speculative or conclusory on its face, 13the court in Zimmermanaddressed expert testimony that was potentially nonspeculative and specific enough on its face with respect to each claim, but discounted it because it provided inconsistent accounts as to how the accident occurred. The court held that testimony by the expert, concerning two alternative, but mutually exclusive theories of causation, tended to undermine the relative likelihood of either theory. Finally, the court held that given that the Noseworthydoctrine did not apply, the plaintiff was, in essence, requesting that the doctrine of res ipsa loquitor be applied, but the failure to eliminate non-negligent causes as well as the failure to negate voluntary contribution by the plaintiff to the accident, made this doctrine inapplicable. Perhaps, the lesson to be learned is that when it comes to proving causation, more is not necessarily better. If the Noseworthydoctrine is not applicable, one consistent theory of departure and causation, supplemented by expert testimony based on causative factors such as the pattern of injury, might have been sufficient to avoid dismissal. 14Plaintiffs who cannot take advantage of the Noseworthydoctrine, yet attempt to allege multiple theories of departure in an effort to remedy a potential defect in causation, had best evaluate whether there is potential inconsistency in their expert’s testimony, or proceed at their own peril. Andrew S. Kaufman, a partner at Kaufman Borgeest & Ryan, represents health care providers in many specialty fields. Cristina LaMarca and Carol Doty, associates at the firm, assisted in the preparation of this article. Endnotes: 1. Noseworthy v. City of New York,298 NY 76 (1948). 2. Schechter v. Klanfer,28 NY2d 228 (1971). 3. Sawyer v. Dreis & Krump Mfg. Co.,67 NY2d 328, 502 NYS2d 920 (1986). 4. This question was reviewed in the excellent article of Michael Hutter in the Syracuse Law Review 2002, Survey of New York Law: Evidence, 52 Syracuse L. Rev. 397. 5. Dunkak v. Wartburg Senior Housing, Inc. , 12 Misc3d 1156, 819 NYS 2d 209 (West. Sup. 2006). 6. Circumstantial evidence, PJI 1:70. 7. Burden of Proof: When Plaintiff Suffers Loss in Memory, See also PJI 1:62 and Burden of Proof in Death Cases, PJI 1:61. 8. Kambat v. St. Francis Hospital,678 NE2d 456 (1997). See also Thomas Moore, “The Court of Appeals And Res Ipsa Loquitur.” NYLJ Vol 217, Number 65, April 7, 1997 . 9. Zimmerman v. Mt. Sinai Hospital Queens and Kassapidis. Queens Supreme Court, Index Number 6261/03. 10. We note that there is a distinction between these and the Mortensen v. Memorial Hospitalline of cases in which it was held that testimony that a delay in diagnosis that more likely than not increased the risk of a recurrence of cancer, withstood a motion to dismiss. In Mortensen, there was only one theory of liability, namely a delay in diagnosis, and the issue related to the degree of increase in this risk, rather than the mechanism of causation. Mortensen v. Memorial Hospital,105 AD2d 151. 11. General Instructions – Burden of Proof, PJI 1:60. 12. Arjona v. Calcano , 7 AD3d 279, 776 N.Y.S.2d 49 (1st Dept 2004); Vaughan v. Baez, 305 AD2d 101,758 N.Y.S.2d 648 (1st Dept 2004). 13. See Arjonaand Vaughanabove. 14. For example, had plaintiff limited the focus and asserted, through expert testimony, that plaintiff’s lack of recollection concerning the fall was most consistent with confusion and dizziness secondary to inappropriate medication, the dismissal might have been averted.

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