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Plaintiff moves for a Frye hearing in medical malpractice action – Fernandez v. St. John’s Queens Hospital, 2007 NY Slip Op 31604(U) (N.Y. Sup. Ct. 6/11/2007)


In a medical malpractice claim, both the plaintiff and the defendants moved for a Frye hearing regarding the anticipated testimony of the expert witnesses. In the alternative, the defendants ask the court to dismiss the plaintiff’s action, and the plaintiffs ask the court to preclude the testimony of the defendants’ experts.

Established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the purpose of a Frye hearing is to determine the admissibility of scientific evidence. Opponents of scientific evidence that the opposing party wants to submit typically object to it as unsupported by published articles or prevailing medical or scientific thought. During a Frye hearing it is up to the court to determine if the testimony was developed based on accepted on scientific methods.

In Fernandez v. St. John’s Queens Hospital, the infant plaintiff was born prematurely on April 29, 1991 at St. John’s Hospital in Queens. She was discharged on July 10, 1991. After discharge, defendant Pavlakis, a pediatric neurologist and defendant Miguez, a pediatrician, began to treat her. In October 1991, Pavlakis diagnosed the plaintiff with progressive obstructive hydrocephalus and placed a shunt to remove fluid around the brain. It was determined that the plaintiff had suffered brain damage. She has spastic quadriplegia, severe mental retardation, and suffers from seizures. She was admitted to New York Foundling Hospital.

The plaintiff filed a medical malpractice lawsuit against the two doctors maintaining that both departed from good and accepted treatment of plaintiff in failing to timely and properly recognize plaintiff’s progressive obstructive hydrocephalus, and in failing to take other appropriate steps to care for and treat the plaintiff. As a result, the plaintiff suffered severe, permanent injuries and will require custodial care for the rest of her life. In support of her claim, the plaintiff plans to offer testimony from experts who will testify that the negligence of the defendants led to the plaintiff’s injuries. The plaintiff’s experts will base their testimony on the plaintiff’s medial and hospital records, radiological studies, deposition testimony, the experts’ knowledge and experience in pediatrics and radiology.

In support of their position, the defendants plan to call Drs. Zimmerman and Spiro as experts. They will posit that MRI studies taken right around the time of the plaintiff’s birth show the onset of the hydrocephalus which would account for the plaintiff’s brain damage. While the defendants do not claim that pressure on the brain caused by hydrocephalus can never result in the neurological, developmental, and mental defects, they contend that in this case radiological studies establish conclusively that the plaintiff’s would still have her neurological defects, developmental delays, and mental retardation even if the defendants had diagnosed and treated the hydrocephalus timely. The critical evidence will be the interpretation of films.

In other words the defendants’ experts will state that the sole proximate cause of the plaintiff’s condition was damage prior to the hydrocephalus, while the plaintiff’s expert will state that the sole proximate cause of the plaintiff’s condition was the hydrocephalus.
In a Frye hearing the court’s job is to determine whether the expert’s deductions are based on principles that are sufficiently established to have gained general acceptance in the medical or scientific realm as reliable. The court concludes that the plaintiff has met her burden of establishing that not all children with some loss or damage to white matter in the brain cannot sustain additional damage by some subsequent insult or injury. Thus, the defendant’s motion to preclude based on Frye is denied. Furthermore, the court also denied the defendant’s motion to dismiss the complaint because there are issues of fact for a jury to decide.

In addition, the court found that the defendants have failed to demonstrate that the theory that their experts will advance that a child with any amount of white, or white and gray matter loss or damage as reflected on early radiological studies will inevitably suffer the same disabilities as the plaintiff in this case is generally accepted by the medical community.

Thus, the plaintiff’s cross motion is granted and the defendants are precluded from offering evidence at the trial from their experts that every child with white or gray matter damage to the brain as reflected in early neurological studies will necessarily suffer mental retardation, spastic quadriplegia, and other types of catastrophic injuries as the infant plaintiff in this case cannot suffer additional damage if later left with untreated hydrocephalus.

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