Before the completion of discovery in the case, Mobil Oil moved to preclude Parker's expert testimony on the issue of medical causation. Mobil Oil argued that the expert testimony was scientifically unreliable. Mobil Oil submitted the expert affidavits of an epidemiologist and toxicologist to establish that there was no causal relationship between the plaintiff's exposure to benzene in gasoline and his leukemia.

In opposition to Mobil's motion, Parker submitted the reports of two experts: the first, a board-certified physician in occupational medicine and fellow of the American College of Epidemiology, and the second, a physician who was an expert in toxicology and epidemiology.

The first of plaintiff's medical experts noted that several studies had found an increased risk of leukemia in petroleum refinery workers and concluded that to a reasonable degree of medical certainty Parker contracted his leukemia as a result of his occupational exposure to benzene. The second expert stated that Parker had greater levels of exposure to benzene than the workers in the refinery studies. Neither of Parker's experts quantified his exposure to benzene from gasoline. Moreover, neither expert cited any studies linking acute myelogenous leukemia to exposure in gasoline.

Ruling of the Court:
The Court of Appeals, the highest court in the New York Court system, precluded plaintiff's experts from rendering their medical and/or scientific opinions and dismissed the plaintiff's complaint.

Reasoning:
The plaintiff's experts, although highly qualified in their respective fields, failed to demonstrate that exposure to benzene as a component of gasoline caused Parker's leukemia. The general, subjective and conclusory assertion that Parker had far more exposure to benzene than the refinery workers in the epidemiological studies was insufficient to establish causation. It neither stated the level of the refinery workers' exposure, nor specified how Parker's exposure exceeded it. Thus, the experts' opinions lacked epidemiologic evidence to support the plaintiff's claim. The experts failed to establish the relationship between exposure to benzene as a component of gasoline and Parker's leukemia.

This decision of interest is not an official citation, and should not be cited as such, nor is it intended to provide any legal advice. For the full text of the uncorrected decision , visit http://www.courts.state.ny.us/reporter/.

As the defendants' attorneys were preparing for the upcoming trial, they requested that the plaintiff (the administrator of the deceased's estate) provide HIPAA-compliant authorizations permitting the defense attorneys to interview the deceased's non-party treating physicians. The plaintiff refused to provide the authorizations. The lower court ordered the plaintiff to provide the authorizations and the plaintiff appealed.

Ruling of the Court:
A divided Appellate Division (two judges dissented), reversed and held that such private interviews with a plaintiff's non-party treating physicians were not authorized under the law.

Reasoning:
Prior pre-HIPAA case law permitted defense counsel to conduct private interviews with a patient's treating physicians once the case was certified as ready for trial. The practice of conducting private interviews of treating physicians was used primarily in medical malpractice litigation. Recently, however, the Appellate Division, Second Department, in a case entitled Arons v. Jutkowitz, held that the courts may not compel patients to authorize such private interviews. The Appellate Division, Fourth Department in Kish v. Graham agreed and held that such interviews are prohibited. The court held that proper method for obtaining information from a treating physician is to conduct a formal deposition of the treating physician.

The two dissenting judges argued that a party waives the physician-patient privilege by bringing a personal injury action and that fairness dictates that both the patient-plaintiff and the defendant physicians should have equal access to information held by a treating physician. Requiring the defendant physicians to conduct more expensive, inconvenient, and burdensome depositions to gather information from treating physicians provides an unfair advantage to plaintiffs over defendants, argued the dissenters. The dissenters noted that requiring a treating physician to submit to depositions or written questions/interrogatories could significantly impact the treating physician's availability to practice medicine. The dissenting judges warned, "Instead of communicating with an attorney during a 10-minute telephone call, a [treating] physician could be required to attend a four-hour deposition or to provide a time-consuming response to detailed and lengthy interrogatories."

Editor's Note:
The practical effect of the court's decision on medical providers, and whether the dissenting judges' dire predictions become reality, remains to be seen.

This decision of interest is not an official citation, and should not be cited as such, nor is it intended to provide any legal advice. For the full text of the uncorrected decision , visit http://www.courts.state.ny.us/reporter/.

He confirmed by telephone that an on-call attending obstetrician and the chief obstetrical resident physician were caring for the patient pending his arrival. The defendant physician arrived at the hospital shortly after the birth, at which time the attending and resident physicians were repairing a perineal laceration sustained by the patient during the delivery. Following the delivery, the patient experienced severe urinary and fecal incontinence. The patient argued that had the defendant obstetrician been present, his experience might have led him to perform an episiotomy, which would have prevented the perineal tear. She argued that the defendant obstetrician was negligent in leaving the delivery to an inexperienced resident, who performed a faulty repair of the laceration.

Ruling of the Court:
The court granted summary judgment in favor of the defendant obstetrician.

Reasoning:
Although the defendant obstetrician was not available for the delivery, he properly arranged for coverage by competent medical personnel in his absence. Thus, there was no connection between the defendant obstetrician's arrangement of medical coverage and the alleged injuries.

What is more, the plaintiff's claims against the defendant obstetrician rested on speculative and specious assumptions that the plaintiff had sustained a third- or fourth-degree tear, that a proper examination would have revealed it, that such a laceration would have been amenable to surgical repair, and that the repair would have been successful. The court noted that such "hindsight reasoning" was insufficient to prove the plaintiff's case. The plaintiff's claims were not supported by the notations in the hospital record or the testimony of the attending and resident obstetricians. It was speculative of the plaintiff's expert to infer that the laceration would have been successfully repaired had the defendant obstetrician made a proper examination and diagnosis.

This decision of interest is not an official citation, and should not be cited as such, nor is it intended to provide any legal advice. For the full text of the uncorrected decision , visit http://www.courts.state.ny.us/reporter/.