The Role of Judicial Admission in Medical Malpractice Defense
In his Medical Malpractice Defense column, John L.A. Lyddane writes: In a world of litigants sharing their most private affairs with total strangers, and inexpensive data storage of virtually every detail of their lives, the potential for securing admissions by opposing litigants demands attention in discovery. It is useful to examine what constitutes an admission, and how admissions are best employed.
September 16, 2019 at 11:00 AM
9 minute read
The role of judicial admissions in civil litigation in New York has long been recognized.
In a civil action the admissions of a party of any fact material to the issues are always competent evidence against him wherever, whenever, or to whomsoever made. Reed v. McCord, 160 NY 330, 341 (1899).
In a world of litigants sharing their most private affairs with total strangers, and inexpensive data storage of virtually every detail of their lives, the potential for securing admissions by opposing litigants demands attention in discovery. It is useful to examine what constitutes an admission, and how admissions are best employed.
Types of Admissions
There are two types of judicial admission, the formal judicial admission, and the informal or evidentiary admission. Formal judicial admissions constitute a small subset which foreclose any other evidence and have conclusive effect. Addo v. Melnick, 61 A.D.3d 453, 457 (1st Dept. 2009). A party's statement will constitute a formal judicial admission when it is made in the course of the same proceedings and its intent is to concede the truth of facts alleged by an adversary, such as in response to a formal pleading, a reply to a request for admission, or facts stipulated or admitted in open court.
An informal judicial admission is any admission made in a lesser context whether or not related to litigation or sworn accounts, which includes entries in a hospital record of the party. See Berkovits v. Chaaya, 138 A.D.3d 1050 (2d Dept. 2016). As opposed to the formal variety, the informal judicial admission is not conclusive of the fact admitted but constitutes evidence of the fact. The weight of that evidence is to be assessed by the jury, so it is generally admissible pursuant to a recognized exception to the hearsay rule to be assessed by the trier of fact. Ocampo v. Pagan, 68 A.D.3d 1077, 1078 (2d Dept. 2009). Admissions of the informal type may also be found in pleadings, bills of particulars, pre-trial testimony or even testimony at trial. See Knutson v. Sand, 282 A.D.2d 42, 48 (2d Dept. 2001). The exclusion of informal judicial admissions is not harmless error and the remedy is reversal and a new trial. Gomez v. City of New York, 215 A.D.2d 353 (2d Dept. 1995).
It is not necessary that the party's admission is based upon personal knowledge. Reed, 160 N.Y. at 341. An admission has been found in a party's statement of current belief even if subsequently contradicted by the witness. Addo, 61 A.D.3d at 454. It is also not necessary that the statement was an admission at the time it was made. Cepeda v. AC&S, 15 Misc. 3d 1111A (Sup. Ct. N.Y. County, 2007).
In the Berkovits case cited above, the history given by the patient and recorded by the nurse was on a pre-printed form which read: "Patient/Significant other states that the current problem/reason for admission is … ." As is common practice in hospital care, the patient's nurse recorded the history as to how the plaintiff was injured in quotation marks to designate that the words were those of the patient. The trial court precluded the use by the defense of that entry in the plaintiff's hospital chart although it contained facts contrary to those claimed as the cause of the accident by the plaintiff at trial. After defense counsel offered the testimony of the nurse who had made the entry on the patient's chart, and the nurse gave testimony outside the presence of the jury attributing the statement of facts to the patient, the court likewise precluded her trial testimony. The jury found for plaintiff on the issue of liability and the defendants appealed.
The Appellate Division reversed, holding that it was error to preclude the entry in the hospital chart and the testimony of the nurse who recorded it. The Appellate Division held that even if the entry was not germane to diagnosis or treatment, it was inconsistent with the plaintiff's position at trial and was proper evidence in the form of an informal judicial admission, requiring a new trial. Berkovits, 138 A.D.3d at 1051.
The Knutson case involved a claim of alveolar nerve injury against an oral surgeon who had implanted titanium fixtures into the patient's right mandible. In determining whether the plaintiff had made out a prima facie case, the Appellate Division examined the testimony of the defendant himself. Although the trial court had dismissed the case as a matter of law, the Appellate Division examined the oral surgeon's statements to the effect that it was important to avoid contact with the alveolar nerve during the procedure and found them to constitute an admission, despite the fact that it was the surgeon's position that he succeeded in avoiding nerve contact. Knutson, 282 A.D.2d at 45.
To complicate matters further, intrusion of the implants into the alveolar canal was agreed to be an accepted risk of the procedure, and it was not clear if the alveolar nerve was injured by the efforts of the surgeon in that particular case. However, finding that the surgeon had knowledge of the facts and made the admission "understandingly and deliberately," the court found that the trier of fact should have been allowed to determine the weight of the testimony as an admission and sent the case back for a new trial.
Admission by an Authorized Agent
Admissions made on behalf of a party by her attorney and expert witnesses may be binding upon the party as either admissions by an authorized agent or adoptive admissions depending on the context. See Yannon v. RCA Corp., 100 A.D.2d 966 (2d Dept. 1984). Attorney-client privilege does not bar the use of an informal judicial admission by the attorney against his client where the admission is made in open proceedings. People v. Brown, 98 N.Y.2d 226 (2002). Where the attorney has made admissions in a pleading which is then superseded by an amended pleading, the admissions in the initial pleading do not lose their effect.
As informal judicial admissions, they may be explained at the time of trial, however, and the weight to be accorded to the admissions is a question of fact for the jury. Kwiecinski v. Hwang, 65 A.D.3d 1443, 1444 (3d Dept. 2009). Where the attorney was denied the opportunity to explain the circumstances of an admission which was made without his client's authority or knowledge, and with insufficient facts to support it, the rejection of the explanatory evidence was prejudicial and a new trial was ordered. Ranken v. Probey, 136 A.D. 134 (3d Dept. 1909).
Adopted Admissions
An adoptive admission is found where a party acknowledges and assents to a statement already uttered by another person, which then becomes the admission of the party. However, it must be shown at the threshold that the party heard the assertion and comprehended its implications. People v. Campney, 94 N.Y.2d 307, 311 (1999) citing 4 Wigmore, Evidence 1069 at 100. Affidavits of the plaintiff's physicians in prior litigation, which asserted facts at variance with her position at trial of a subsequent case were properly introduced against her as adopted admissions, and it was proper for the trial court to give a missing witness charge as to one physician who had provided such an affidavit and whose trial testimony would have been expected to be at variance with that of her testifying physician. Frank v. McCutcheon, 29 A.D.3d 470 (1st Dept. 2006). Adoptive admissions may be used against a party even where the statement was not adverse to the party's interest when made, but is against that party's interest at the time of trial. Cepeda, 15 Misc. 3d 1111A.
Employee Admissions
The issues involving admissions by the employee of a party inevitably arise in the context of medical care received in institutional settings where participants in the treatment are employed by entities which are parties to the litigation. The admissibility of evidence of admissions by an employee against his employer is controversial but New York still requires that the proponent of the purported admission show that the employee was one whose scope of authority allowed him to make statements binding on his employer. Loschiavo v. Port Authority, 58 N.Y.2d 1040 (1983).
Given the fact that admissions are received in evidence as an exception to the hearsay rule, based upon the presumption that a person will not make a statement reflecting poorly upon the speaker unless it is true, the Legislature has wisely adhered to precedent. The statement of an employee could easily be adverse to the interests of the employer without being adverse to the interests of the employee, removing any assurance of reliability.
The fact pattern in Tyrrell v. Wal-Mart Stores, 97 N.Y.2d 650 (2001) provides an example of this divergence between the interests of the employer and employee. In Tyrell, the plaintiff had slipped on a foreign substance on the floor of the store, and the employee who responded to the scene supposedly said "I told somebody to clean this mess up," neatly providing notice to the employer and acknowledgement of a dangerous condition in one short sentence. Tyrell, 97 N.Y.2d at 651. At trial, the plaintiff offered the testimony of her husband as to the statement of the unidentified employee who supposedly made the admission. The trial court admitted the husband's testimony without noticing that it was the antithesis of an admission. Rather than an admission of responsibility for the event, the statement of the employee was an exculpatory utterance, which displaced responsibility on yet another unidentified employee. That form of double hearsay would be immune to contradiction even where it is known prior to trial. Its admission required a new trial.
Conclusion
Opportunities to employ judicial admissions are increasingly available to counsel defending medical malpractice cases. With appropriate attention to discovery and development of the evidence of admissions the defense will benefit accordingly. An appreciation of the case precedent which defines the use of admissions should be useful to the practicing attorney.
John L.A. Lyddane is a partner at Dorf & Nelson who has extensive experience in jury trials of technically complicated liability matters, including professional liability cases and construction-related lawsuits.
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