July 26, 2007

In New York the standard is Frye.

When plaintiff was admitted to the hospital after having had a stroke, it was discovered that she had bradycardia, which is a heart rate of fewer than 60 beats per minute. Her treating physicians were convinced that the bradycardia had caused the stroke, and that it could have been prevented had a pacemaker been inserted within the previous year. The First Department dismissed the subsequent medical malpractice action, in Marso v. Novak, which was decided on July 19, 2007. Noting that plaintiff's own causation-expert testified that it is not generally accepted in the scientific community that bradycardia is a risk factor for the type of stroke plaintiff suffered, the court found that New York's Frye standard was not satisfied. The court specifically rejected plaintiff's argument that, because all other possible causes had been eliminated by testing, Frye was not implicated.