CPLR §4519, the so-called "Dead Man's Statute," should not be applied to bar the admission of otherwise relevant and admissible testimony in the defense of a medical malpractice action. In cases where the issue arises, a strong argument can be made that the plaintiff, having waived the physician-patient privilege by bringing the action and putting the defendant's treatment of the decedent at issue, should likewise be deemed to have waived the application of the Dead Man's Statute—a rule of evidence that prohibits an "interested" party or witness from testifying, at trial, as to communications or transactions with a deceased person, where the testimony is offered against the administrator or executor of the decedent's estate.
The Court of Appeals has specifically held that the personal representative of a decedent's estate may not use the Dead Man's Statute as a sword rather than a shield:
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