Karasik v. Bird , 98 A.D.2d 359 ( 1984 )

OPINION OF THE COURT

Alexander, J.

In this wrongful death action, based upon the alleged medical malpractice of the defendants, the plaintiff-appellant Martin Karasik, widower and administrator of the estate of Gayle Karasik, the decedent, seeks a new trial, contending that the jury’s determination that the defendant Etta Bird was not guilty of medical malpractice is against the weight of the credible evidence; that the court erred in refusing to allow the plaintiff’s expert pharmacologist to testify as to the effect of chemical drugs prescribed by the defendant Bird for the decedent and whether these chemical drugs were a proximate cause of the decedent’s death. Appellant also contends that it was reversible error to permit defendant’s counsel to read to the jury, during summation, a report of the decedent’s life history that had been prepared by the decedent and given to the defendant Bird during the course of decedent’s treatment. Appellant contends that this report was highly inflammatory and unduly prejudicial and was read for the sole purpose of inflaming the jury and evoking their sympathy for the defendant Bird and their antipathy toward the decedent. For the reasons herein set forth, we reverse and order a new trial.

The decedent, Gayle Karasik, a 28-year-old mother who is survived by the plaintiff herein and a 3-year-old infant died as a result of fatty metamorphosis of the liver. The trial evidence revealed that the decedent was seriously mentally disturbed, with a history of serious drug and alcohol abuse, apparently growing out of a tragically disturbed background that led to a myriad of problems in her life, including adultery, attempted suicide, marital discord and the like. She came under treatment by the defendant Etta Bird in March of 1973, first as a private patient and then as an outpatient of the clinic at Kings County Hospital where Bird was employed as a psychiatrist. Over the 14 months of the treatment of the decedent, Bird repeatedly prescribed multiple antidepressant, addictive drugs, a course of treatment called “polypharmacy”. The evidence established that these drugs were prescribed interchangeably and cumulatively, without any control or consideration of the potential for abuse by a known drug abuser. Bird either failed to diagnose drug abuse as one of decedent’s problems or if diagnosed, failed to record such diagnosis. She also failed to diagnose decedent’s substantial weight gain, apparently resulting from the drugs prescribed for her and, either failed to note or ignored the marked deterioration of decedent’s mental and physical condition manifested by constant drowsiness with long bouts of sleep, visual hallucinations and loss of sphincter control which normally is associated with brain damage. Despite these symptoms, the defendant did not conduct physical and neurological examinations of the decedent, nor assure that they were conducted, while continuing nevertheless to prescribe the various antidepressant drugs. Plaintiff’s experts testified that these tests, if conducted would have indicated the seriousness of the decedent’s condition and that the continued prescription of these various drugs was contraindicated.

Plaintiff’s expert evidence was largely uncontradicted by any countervailing evidence offered by defendant’s experts. It tended to establish that the treatment administered by Bird failed to meet standards of proper medical care and thus was malpractice. The defendant’s expert witnesses’ testimony was directed primarily toward the issue of proximate cause and argued that the defendant’s medical treatment did not cause the decedent’s liver disease or resultant death. Defendant’s witnesses testified that decedent’s alcoholism was an intervening, paramount cause of the fatty liver condition, if indeed, not the sole cause, and that nowhere in the annals of medical history was there any indication that any of the drugs of the type prescribed by Bird had ever caused or been associated with fatty metamorphosis of the liver. Consequently, argued defendant, the prescription of these drugs could not constitute “malpractice” since they were not the “cause” of the decedent’s malady.

Plaintiff attempted to demonstrate through the testimony of Dr. Perel, a pharmacologist, that these drugs had an effect upon the chemistry of decedent’s body, particularly her brain and liver and were a causal factor in the development of the liver condition. These efforts were frustrated however by the court’s refusal to allow the pharmacologist to give his opinion. The court ruled that because Dr. Perel did not have a “medical degree” he was not competent to give a “medical opinion”.

Dr. Perel is a clinical pharmacologist and a professor of clinical psychiatry and clinical pharmacology. He is the author of a number of publications in the clinical use of psychotropic agents in the treatment of schizophrenia and depression, and was the director of clinical pharmacology for the Veterans Administration Medical Center in Pittsburgh, Pennsylvania. He holds doctoral and postdoctoral degrees in chemistry and clinical pharmacology and has had extensive postdoctoral training in physiology. The court accepted him as an expert in pharmacology, which involves the study of drugs, the properties and reactions of drugs and the relation of these properties and reactions to their therapeutic value, including the effect of chemical substances on various organs of the body. However, the court refused to permit him to render an opinion as to the causal relationship, if any, between the chronic ingestion of the drugs prescribed by Dr. Bird and the decedent’s brain and liver condition. The court ruled that that question calls for a “medical opinion” and because Dr. Perel is not a licensed medical doctor, he was not competent to give such an opinion.

The determination of the question of whether or not a witness is qualified to testify as an expert in respect to a particular subject lies in the “reasonable discretion [of] the trial court, which discretion when exercised, is not open to review unless in deciding thé question the trial court has made a serious mistake or committed an error of law or has abused his discretion.” (Richardson, Evidence [10th ed], § 368, p 343; Meiselman v Crown Hgts. Hosp., 285 NY 389.) In People v Rice (159 NY 400, 410), the Court of Appeals, in considering whether one not licensed as a “medical doctor” should be permitted to give an expert opinion or a “medical question”, observed that:

“[I]f a man be in reality an expert upon any given subject belonging to the domain of medicine, his opinion may be received by the court, although he has not a license to practice medicine. But such testimony should be received with great caution and only after the trial court has become fully satisfied that upon the subject as to which the witness is called for the purpose of giving an opinion, he is fully competent to speak.”

Moreover, “[a] witness may testify as an expert if it is shown that he is skilled in the profession or field to which the subject relates, and that such skill was acquired from study, experience, or observation.” (Meiselman v Crown Hgts. Hosp., 285 NY 389; Jones v National Biscuit Co., 29 AD2d 1033, 1034; see, also, Matter of Boyle, 271 App Div 614.)

Here, where the critical issue for the jury’s determination was the effect, if any, upon the organs of the decedent’s body of the chronic ingestion of the drugs prescribed by Dr. Bird, the jury was entitled to be able to consider, on that issue, Dr. Perel’s opinion, as one trained in the field of pharmacology, a science relating to that very question. Especially so, in view of the testimony of defendant’s experts that the only substance known to cause fatty metamorphosis of the liver was alcohol. It was of course, the jury’s prerogative to ascribe such weight to such testimony as they deemed appropriate. But at the very least, plaintiff was entitled to have them hear the evidence.

The court’s error in refusing to permit this expert testimony was compounded, in our view, by the reading by defendant’s counsel, during his summation, from the document prepared by decedent and given to Dr. Bird at her request. This document was highly demeaning of the decedent and could only serve to prejudice the jury against her while at the same time evoking a sympathetic attitude toward the defendant doctor. Moreover, while it may have had some peripheral relevance on the issue of damages, it had no relevance at all to the issue of medical malpractice.

Accordingly, the judgment of the Supreme Court, New York County (George E. Ingelhart, J.), entered on April 30, 1981, should be reversed, on the law and the facts, without costs, and a new trial ordered.