The 'Noseworthy' Doctrine in Medical Malpractice Actions

The familiar Noseworthy doctrine holds that a plaintiff in a wrongful death action is not held to as high a burden of proof as in other actions because the deceased plaintiff is not available to recount his/her version of the relevant events. Noseworthy v. City of New York, 298 N.Y. 76 (1948). In Noseworthy, the plaintiff’s decedent somehow descended from the subway platform to the tracks below. He was run over by a train and died a few hours later. The only witness to the accident was the defendant’s motorman, who observed the decedent shortly before impact.

The purpose of the doctrine is to circumvent the situation where “a tort-feasor who inflicts personal injury [would] be insulated from liability simply because the injuries so produced are fatal, and “the decedent, who would have been in the best position to describe the event from plaintiff’s point of view, [is] unavailable to do so.” Boulos v. State of New York, 56 N.Y.2d 714, 716 (1982) (Fuchsberg, J., dissenting). Significantly, however, the doctrine’s sphere of operation is in the weight to be assigned to circumstantial evidence concerning disputed facts because the more direct and proper source of this evidence no longer exists. Holiday v. Huntington Hospital, 164 A.D.2d 424 (2d Dept. 1980). Moreover, where the defendant and the plaintiff are similarly situated insofar as accessibility to the facts of a decedent’s death are concerned, the Noseworthy doctrine has no application. Wright v. New York City Housing Authority, 208 A.D.2d 327, 332 (1st Dept. 1995). Thus, in a case where the plaintiff’s decedent was raped and murdered after apparently being accosted by an assailant in the stairwell of defendant’s building, the Appellate Division reasoned that “[u]nlike Noseworthy, where ‘no one except the motorman knew what took place * * * in that deserted subway station,’ the identity of the assailant is in the instant case and the manner in which he gained access to the building and confronted the deceased is, from all that appears in this record, as unknown to defendant Housing Authority as it is to plaintiff. Thus, since plaintiff and defendant are similarly situated insofar as accessibility to the facts of the deceased’s death is concerned, the Noseworthy doctrine has no application.” Id. (citation omitted).