DRAFT REPORT

LEGISLATION REPORT

COMMITTEE ON CIVIL PRACTICE LAW AND RULES

REPORT NO.                                                                                  April 12, 2000

S. 5145                                                                                            By:     Senator Lack
                                                                                 Senate Committee:     Codes
                                                                                        Effective Date:     Immediately
 
 

AN ACT to amend the Civil Practice Law and Rules, in relation to the admissibility of testimony concerning test results

LAWS & SECTION REFERRED TO: CPLR 4532-a

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (# )

THIS BILL IS DISAPPROVED

        This bill would amend CPLR 4532-a, which addresses the methods by which X-rays, CAT scans, MRIs and other similar tests may be admitted into evidence. The bill provides that no testimony or reports concerning such tests shall be admissible unless the X-ray or other image resulting from the test is available and admissible in evidence. The purpose is to overcome the New York Court of Appeals determination in Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639 (1994). Prior to that decision, the law appeared to prohibit the introduction into evidence of testimony or reports concerning X-rays and the like if the actual X-rays, etc., were not in evidence (Hambsch v. New York City Transit Authority, 63 N.Y.2d 723, 725 [1984]; Marion v. Coon Constr. Co., 216 N.Y. 178, 182 [1915]; Chiu v. Garcia, 75 A.D.2d 594 [2d Dept. 1980]; Richter v. Trailways of New England, 28 A.D.2d 737, 738 [2d Dept. 1967]; Cellamore v. Third Ave. Tr. Corp., 273 App. Div. 270 [1^st Dept. 1948]). In Schozer, the Court likened X-rays to any other document, and posed the issue as one falling within the "best evidence rule". Since that rule is not absolute, and permits introduction of secondary evidence to prove the contents of the original where a sufficient excuse is provided for the original’s absence, the same considerations should apply to X-rays and other test results. Accordingly, the Court held that the Trial Judge should have considered, under traditional "best evidence" criteria, whether the report of an X-ray could be admitted and form the premise for expert testimony.

        There are many in the Committee who agree with the analysis of the dissent in Schozer (and the unanimous court in Marion v. Coon Constr. Co., supra), that an X-ray differs from other documents in a critical respect which renders the "best evidence rule" an inappropriate measuring rod for admissibility. Most documents speak for themselves; secondary evidence, when authorized, is adduced to prove the contents of the document so as to allow the missing document to "speak" its contents to the jury. An X-ray (or other test result), however, says nothing intelligible to a lay jury; it must almost always be the subject of expert explanation (see, Alexander, Practice Commentaries, 7B McKinney’s Cons. Laws of N.Y., CPLR 4532-a, p.279). An X-ray report does not "reconstruct" the X-ray, but interprets it, in light of the understanding of the author of the report. Where expert testimony is based, not on an actual X-ray, which is unavailable, but on a report, the expert is in effect basing his or her opinion on an interpretation of an item not in evidence.

        However, the bill goes too far for most members of the Committee, and fails to account for circumstances in which an absolute bar would work unwarranted prejudice. There is no exception stated for circumstances in which both sides had previously had an opportunity to inspect an X-ray or other test result, which became unavailable by the time of trial. Similarly, the bill would appear to disallow introduction of notes and impressions by doctors (including emergency care physicians) who made determinations premised upon, e.g., infant heart monitor strips which thereafter became unavailable. Similarly left unaddressed are circumstances in which the party against whom the report and X-rays are sought to be admitted was in possession of the test result during its disappearance.

        Thus, although many on the committee agree that the determination in Schozer should be addressed by legislation, this bill is overly broad in its reaction. The current law retains discretion in the hands of the Court. The Schozer court by no means mandated admission of X-ray reports in the absence of X-rays. Furthermore, cases such as Kirkland v. New York City Housing Authority, 236 A.D.2d 170 (1^st Dept. 1997) provide some protection for circumstances in which actual test results, having been seen by experts for one side, are rendered "unavailable" to the other. If Schozer is to be overturned by legislation, a more comprehensive bill, addressing the concerns raised herein, is needed.

For the foregoing reasons, this bill is DISAPPROVED.

The Person Who Prepared the Report: David B. Hamm, Esq.

Chair of the Committee: Steven M. Critelli, Esq.