Breaking News: Landmark Case Finds Standard Defense In Obstetrical Medical Malpractice Cases As Scientifically Invalid!


This post comes from the reaction from the legal community after a major case has just been decided and will appear in greater detail tomorrow in the New York Law Journal by the expert writer John Caher. Mr. Caher’s article is entitled “Panel Rejects Standard Medical Malpractice Defense” and I URGE everyone to please read his post. I just want to summarize some of the main points he makes and not steal his thunder for tomorrow’s publication!

This major case comes from the NATIONAL issue of scientific admissibility from the Frye and Daubert cases. Both are standards used to determine the admissibility of scientific evidence in cases and some states have adopted Frye, and some have adopted Daubert; the federal system uses the Daubert standard and has overruled Frye.

The Frye test provides that an expert opinion based on scientific technique is admissible ONLY where the technique is GENERALLY ACCEPTED as reliable in the relevant scientific community. This is a very broad standard that gives a lot of discretion to judges. New York has adopted this standard.

The Daubert standard is a bit more specific and has certain elements or requirements. In fact, the Federal Rules of Evidence had adopted and codified the Daubert standard into law. It requires first that the testimony be scientific in nature and must be grounded in knowledge; the “scientific knowledge” element. Second, this scientific knowledge must assist the trier of fact—either the jury or the judge (whoever is deciding the case)—in the understanding of the evidence or determining a fact in issue within the case. Third, the judge—no matter if it is the judge or the jury who are making the decision in the case—is the one to make a “threshold determination” if the evidence would assist the trier of fact to decide the case.

The case just decided in the Appellate Division, Fourth Department called Muhammad v. Fitzpatrick upheld a determination by a Supreme Court Justice who precluded evidence of a newborn’s injuries which were caused during birth. The Justice found that a common defense used in the case which argues certain medical issues during labor was not widely regarded or accepted; only a few authors out of a ton of studies acknowledged its plausibility in contributing to the child’s harm.

I was also quoted remarking how huge this could be for patients on a precedential level because it will affect other defense theories such as brachial plexus injury—an injury affecting the network of nerves that sends signals from your spine to your shoulder, arm, and hand and generally occurs when the nerves are stretched to their tearing point and sometimes do tear.

But what do you think?! I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at . You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at