THE DEFENSE WILL ALWAYS BRING IN A MEDICAL EXPERT TO TESTIFY AGAINST YOU
You sued your doctor. For medical malpractice. You claim he was careless. You claim that his carelessness caused you injury. Your doctor laughs at your lawsuit. He says he did nothing wrong. He says whatever he did or didn't do, did NOT cause you harm. Then, as the last straw, he says that your injuries are not that bad. He says he's never going to settle this case. He says he's never going to negotiate with you and your attorney.
That infuriates you. That gets you angry. That gets you mad. You want justice. You want your doctor to pay for what he did to you. Well, since there's no vigilante justice in New York, the only way you can make your doctor pay is with your lawsuit.
The only way you'll get a verdict in your favor is if you can show a jury of six people that you are more likely right than wrong that what you are claiming is true. You don't have to show with 100% certainty that what you're claiming is correct. Only that you're slightly more likely right than wrong.
That means that your case will proceed through the entire litigation process. You'll go through the 'discovery' process where each side learns about the other. Documents will be exchanged. Medical records will be copied and exchanged. You'll be questioned by your doctor's attorney. We'll question your doctor.
When 'discovery' is complete, we'll notify the court that your case is ready for trial. Then it will sit on the trial calendar for many months. It could be six months. It could be twelve months or more.
WE MUST TELL OUR OPPONENT WHEN WE'VE HIRED AN EXPERT
You should know that in New York, we are obligated to notify our opponent when we have retained an expert who will be coming to testify at trial. It could be a medical expert. It could be an economics expert. I could be some other type of expert. We must tell the defense that we have hired whichever experts will be testifying on our behalf.
How do we actually notify the defense that we hired various experts?
Simple. We prepare a document called an "EXPERT WITNESS REPLY." This document is a reply to the defense's inquiry asking which expert's we've hired. It asks for our experts' credentials. It asks what the experts' specialty is and what he'll be talking about. It asks for details. It asks for his or her name. It asks that we identify what information our expert is relying on in order to reach his conclusions.
This applies to any expert we have hired. A medical expert especially.
Let's focus on the title of this article. I asked "How do we know which expert the other side will be bringing in to testify?" You might think it's a straightforward answer. Actually, it's not and let me explain why.
In a medical malpractice case in New York, the person bringing a lawsuit against their doctor MUST have a medical expert confirm that (1) there was wrongdoing, (2) the wrongdoing was a cause of your injury and (3) your injury is significant. A medical expert who has reviewed all of your records must CONFIRM all of those things before you are permitted to file your lawsuit.
So that's the first step. Hiring a medical expert who has evaluated all your records and concludes that you have a valid and meritorious case. Fast forward about two to three years. Your case is now coming up for trial. I MUST notify the defense that I hired a medical expert to testify on your behalf. I MUST tell the defense that our expert is a board certified surgeon. I MUST tell the defense where our expert is licensed to practice and what hospitals he's affiliated with. I am required to tell the defense where my expert went to medical school and where he did his internship and residency. I must also disclose if our expert has published articles or textbooks in his specialty.
BUT, I DO NOT TELL THE DEFENSE WHO MY EXPERT IS!
Isn't that interesting? I am legally required to tell the defense my experts' background. Where he went to school, where he did his medical training. Where he practices and what his specialty is. I DO NOT PROVIDE MY EXPERT'S NAME.
Likewise, when the defense notifies me which experts they are bringing into court to testify, they do the same exact thing. They provide me with his credentials but do not provide his name.
Let me tell you why neither side reveals their expert's name and why this secretive disclosure is a game that is easily defeated.
The rationale for not revealing our expert's name is that there is a well-founded belief that once we identify our medical expert, the defense will, through various networks of physicians, attempt to exert pressure on this doctor for testifying against one of their own. It has been known to occur. If our expert succumbs to peer pressure not to testify against a colleague, then we are stuck without a medical expert.
If that happens, then our case cannot proceed forward and will get thrown out of court before a jury ever gets to decide if we're more likely right than wrong. So what do we do?
The law was written to try and avoid revealing our expert. You see, once the defense has identified our expert, they will dig and dig to find any dirt on this expert. They will dig up transcripts of prior testimony. They will search his background. They will unearth anything they can use against him during cross examination at your trial.
Likewise, we do the same exact investigation to try and find anything we can use against the defense's experts once we've identified who they're bringing in to testify against you at trial.
HERE'S HOW THIS GAME IS EASILY DEFEATED
This law was written before the internet became so powerful and useful. When it was written, it was extremely cumbersome and difficult to identify who the experts were even though the other side gave us so much helpful identifying information.
Well, technology has made identifying experts quite easy. There are computer programs now that allow us to simply insert an experts' qualifications. It's really 'fill in the blanks'.
"Licensed in what State?"
"Board certified in what specialty?"
"Affiliated with which hospitals?"
Just plug it in. Then go through the search results. 99% of the time, the results are accurate. This is single easiest way to defeat the requirement that we do not have to identify our medical experts. What that really means is that this secretive process that all medical malpractice attorneys go through as your case gets to trial is a fiction. Each side knows it.
Each side knows that they other will readily identify who we're bringing in to testify. But because of the way the rules are written, it's an exercise in futility. I think each side secretly enjoys knowing that the other side has to work at it to uncover which medical experts will be testifying in your case.
You should know that this secretive process only applies to medical experts in medical malpractice cases. It doensn't apply to accident reconstructive experts. It doesn't applly to economic experts. It doesn't apply to rehabilitation experts. Only to medical experts.
To learn why the defense was not permitted to have their expert testify, I invite you to watch the quick video below...