Supreme Court of New York Allows Toxicology Expert Without MD To Testify In Medical Malpractice Case

    Toxicology Expert Witness

    Court – Supreme Court of New York
    Jurisdiction – State
    Case NameRodriguez v Pathak
    Citation – 2018 N.Y. Misc. LEXIS 2830

    In this medical malpractice case, it was determined that a toxicology expert witness does not need a medical degree to render an opinion on medical malpractice, so long as the expert is not making a medical diagnosis nor attesting to any medical processes or procedures.


    Plaintiff Christine Rodriguez was transported to the emergency room at 24 weeks gestation due to heavy vaginal bleeding and the urge to push. The plaintiff reported she had smoked during her pregnancy and that she was taking antibiotics for a urinary tract infection. The plaintiff underwent an emergency C-section and suffered a massive intraoperative hemorrhage. She ultimately required a hysterectomy. The infant was placed in intense neonatal care after showing signs of early onset of pulmonary interstitial emphysema (PIE).

    The infant’s condition worsened the next day, and his pediatrician ordered fentanyl via IV. The attending neonatologist became involved with the infant’s care three days after his birth. At this point, the infant was moving all extremities. A chest x-ray was performed to place a peripherally inserted central catheter line and to ensure appropriate positioning of the endotracheal tube (ETT). The infant subsequently became agitated and was prescribed fentanyl in saline.

    The infant’s father testified that he overheard a conversation between a doctor and a nurse in which the nurse indicated that the neonatologist was administering the infant an excessive amount of medication.

    The infant’s blood pressure began to drop and he suffered “acute deterioration.” When the infant’s heart rate dropped into the 40s, a code was called. In spite of resuscitative efforts, the infant ultimately passed away.

    An autopsy listed the cause of death as “complications of Fentanyl administration for sedation”. A toxicology report showed 2 ng/mL of fentanyl in the infant’s blood and 23.6 ng/g of fentanyl in his liver.

    Before trial, the defendants argued that summary judgment must be granted because the plaintiff could not establish that defendants’ medical treatment deviated from accepted standards of care or proximately caused the infant’s injuries. The plaintiff questioned the actual dose of fentanyl administered and argued that the  defendants’ depositions and written records were unreliable.

    Applying Toxicology Analysis To A Medical Malpractice Case

    The plaintiff retained a board-certified toxicology expert who opined that although the record revealed that the physician  ordered 1 mcg of fentanyl by IV, it did not indicate what dose was actually administered. The expert also determined that the infant was mistakenly dosed with 10 mcg of fentanyl based on the values from the toxicology report. In reply, the defendants attacked the credibility of plaintiff’s expert toxicologist and contended that the expert lacked the requisite qualifications — namely a medical degree — to testify about the standard of care in the field of toxicology and/or the applicable standards of medical care.

    The expert had conducted a volume of distribution analysis and explained that since fentanyl was administered to the infant by IV, the concentration of fentanyl in the infant’s blood could be calculated immediately after the injection was given. The expert also used the rate of clearance to calculate the concentration of fentanyl in the infant.’s blood postmortem. According to the expert, if the IV push was given 30 minutes before the infant was pronounced dead, there would have been a 9% clearance of fentanyl over a period of 30 minutes from dosing to death. Therefore, he would have had an approximate blood concentration of nearly 8 times more than the prescribed 1 mcg dose.

    The expert also noted that according to the forensic toxicology report, the concentration of fentanyl in the infant’s blood was close to the range of reported fatalities in adults. The expert further concluded that this dosage would certainly be lethal for two-day old premature infant.


    The court did not agree with the defendants’ assertion that plaintiff’s toxicologist was unqualified to testify on the basis that he was not a medical doctor. The court took note that the expert relied on a formulaic calculation to determine what level of toxicity is considered lethal based on an infant’s body weight and known facts about the properties of fentanyl. It was determined that the plaintiff’s toxicology expert witness did not need a medical degree to render an opinion, as he was not making a medical diagnosis nor attesting to any medical processes or procedures.

    The court held that the expert had laid the proper foundation for his theories and calculations, and was satisfied that he possessed sufficient “education, training and experience from which [to] infer that his opinion would be reliable”. Furthermore, any additional medical or specialized expertise in neonatology or premature infants was deemed irrelevant and unnecessary.

    The defendant’s request for summary judgment as it related to the administration of fentanyl was denied.