The first half of this series, addressing the historical development of the law in New York on the professional reliability exception to the rule against hearsay, was published in this space on Sept. 18, 2023. The subject of this second segment is how the professional reliability exception has been applied to the process of medical malpractice adjudication. There are few clear indications of the line between what is and what is not admissible, but there are enough reported cases to provide some insight as to where that line runs.

Diaz v. New York Downtown Hospital, 99 NY2d 542 (2002) was a case which arose from allegations of sexual abuse by an employed technician during a transvaginal sonogram. The issue was whether the defendant hospital had been negligent in its procedures by not providing the patient with a female chaperone during the study. The case reached the Court of Appeals after the summary judgment motion of the hospital had been denied, but the Appellate Division had reversed and dismissed the complaint. The dismissal was affirmed on the grounds that the expert opinion submitted by the plaintiff, that the absence of a chaperone bespoke a departure from the standard of care, lacked factual support.

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