Home Medical Malpractice Dead Man’s Statute: A Potentially Powerful Evidentiary Rule

Dead Man’s Statute: A Potentially Powerful Evidentiary Rule

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New York’s Dead Man’s Statute, codified in CPLR 4519, precludes a party to an action from testifying as to communications or transactions concerning an adversary’s decedent. It can have significant impact in medical malpractice actions where the deceased was either a physician whose estate is a defendant in the action or the patient whose estate is the plaintiff. Because the preclusion of such evidence can be hugely consequential, whether a defendant or a plaintiff, litigants entitled to its protection are typically very grateful for the Dead Man’s Statute. This column discusses the Dead Man’s Statute and decisional law addressing its potential application in both circumstances.

Distilled to its essence for the purposes of this discussion, CPLR 4519 provides:

Upon the trial of an action …, a party or a person interested in the event … shall not be examined as a witness in his own behalf or interest … against the executor, administrator or survivor of a deceased person …, or a person deriving his title or interest from, through or under a deceased person …, concerning a personal transaction or communication between the witness and the deceased person …, except where the executor, administrator, [or] survivor … is examined in his own behalf, or the testimony of the … deceased person is given in evidence, concerning the same transaction or communication.

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