Last week, an appellate court reversed Justice Ellen Spodek of the Supreme Court, Kings County who presided over a wrongful death medical malpractice action against Maimonides Medical Center (Maimonides). The decedent's family claimed, that the emergency room physician properly diagnosed his patient with pneumonia but negligently discharged him on oral antibiotics. Three days after discharge, the patient presented to the emergency room at Coney Island Hospital where he died that night from the complications of pneumonia. The medical expert for the family testified that the decedent should have been admitted to the hospital immediately and treated with intravenous antibiotics given the seriousness of the pneumonia.

The issue at trial was whether the Maimonides ER doctor explained the gravity of the pneumonia to the decedent and offered hospitalization for IV fluids and antibiotics. Another issue was whether the decedent left the hospital against medical advice ("AMA") as that doctor claimed. The Maimonides doctor made a note in the chart confirming he offered the patient hospitalization and treatment, but there was no documentation in the chart confirming the patient had left AMA. A new trial was ordered because hearsay evidence from the Coney Island Hospital ER doctors notes, about their telephone conversation with the decedent's primary care physician, was allowed to be put before the jury. The Coney Island Hospital ER doctors (also defendant's in the case) testified using those notes, that the decedent's primary care physician told them the patient admitted that he left Maimonides Medical Center AMA.

The appellate court held that the Coney Island Hospital ER doctors notes about their conversation with the decedent's primary care physician was not sufficient proof to establish that the decedent was the source of the information that he left Maimonides after signing an AMA form. Such testimony violates the Dead Man's Statute, as codified by CPLR 4519, which severely limits a party defendant from giving testimony about a conversation with a dead patient. The Dead Man's Statute even trumps hearsay that falls under an admission exception to the hearsay rule. Grechkp v Maimonides Med. Ctr., 2019 WL 4281970