Can you imagine this scenario?
A medical malpractice case goes to trial here in New York. The injured victim and her attorney must bring in a qualified medical expert to testify in order to support their claim of (1) wrongdoing, (2) that the wrongdoing caused injury and (3) that the injury is significant or permanent.
If they do not bring in a medical expert to support their claim, the case will be dismissed for failure to prove their case.
What happens though if the injured victim's attorney fails to timely notify the defense lawyer that he has retained a medical expert and will be bringing in this expert to support their case?
The answer is that the judge may have no choice but to prevent this medical expert from testifying.
Want to know why?
There is an important reason why the judge might have no choice but to prevent this witness from testifying.
The answer has to do with giving your opponent sufficient notice so they can prepare for cross examination of this particular witness. If the defense does not have enough time to prepare a cross examination of this particular medical expert, they will ask the judge at trial to prevent this witness from taking the witness stand and testify.
“Objection Your Honor, plaintiff's attorney has failed to provide us with timely notice of what expert they were bringing in. Nor did we have timely notice of what this expert would be talking about. We only received this expert's credentials last night which is not sufficient for us to do with our own investigation and prepare for cross examination.”
There are some instances where a judge will allow the medical expert to testify even under such short notice.
For example, if a medical expert could not be obtained prior to trial, and now only a few days before trial starts an expert is retained. The attorney then notifies the defense that they have retained a medical expert and provides them with the following information:
(1) Their credentials and (2) the substance of what they can be expected to testify about at trial.
In a medical malpractice lawsuit in New York, we are not required and do not provide the name of our medical expert who will be coming into court to support our case.
Ironically, by providing detailed credentials to the defense, they have the ability to take that information and plug it into a computer program, to identify exactly who the expert is.
Likewise, we have the same ability when they notify us who they will be bringing in as a medical expert.
The reality is that by failing to timely notify your opponent that you have retained a medical expert testifying your behalf, you run the very real risk that a judge will prevent you from putting on your medical expert to testify. If that happens you will be left without a medical expert and the judge will have no choice but to dismiss your case for failing to prove your case with a qualified medical expert.
