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July 17, 2014

Failure to Reveal the Name of the Defense Medical Expert Results in Denial of Summary Judgment

New York's Appellate Division, Third Department, affirmed the denial of summary judgment to a hospital in a medical malpractice action. Rivera v. Albany Medical Center Hospital et al., decided July 10, 2014. In reaching its holding, the Third Department weakened the protection that Civil Practice Law and Rules ("CPLR") § 3101(d)(1)(i) provides to the identity of medical experts.

In Rivera, the plaintiff underwent a surgical procedure at the defendant hospital. The plaintiff filed suit against the hospital for medical malpractice, claiming that the procedure caused the plaintiff to have permanent erectile dysfunction.

The defendant moved for summary judgment supported by a medical expert's affidavit, from which the expert's name was redacted. The expert's name was provided to the court for in camera review but was never disclosed to the plaintiff. The redaction was made on the grounds of CPLR § 3101(d)(1)(i), which permits parties in medical malpractice actions to omit the names of medical experts during discovery.

Supreme Court denied the defendant's motion. The Appellate Division affirmed the denial. The court reasoned that by enacting CPLR § 3101(d)(1)(i) "the Legislature has shown no broad intention of protecting experts from accountability at the point where their opinions are employed for the purpose of judicially resolving a case or a cause of action." The court indicated that by requiring a defendant to reveal an expert's name in a summary judgment motion, the plaintiff could attempt to establish a question of fact by exploring the expert's credibility.

The Rivera plaintiff did not submit an expert affidavit opposing the motion, so the issue as to whether the nonmovant is bound by this rule was not before the court. However, the court cited case law providing that the nonmovant is not required to reveal the name of his medical expert, suggesting that the identity of nonmovant experts need not be revealed.

The Appellate Division's ruling in Rivera limits the protection provided by CPLR § 3101(d)(1)(i) in shielding the identify of medical malpractice experts, and serves as a warning to defense practitioners in medical malpractice actions. In Rivera, as the affidavit was inadmissible, the defendant was limited to medical records and deposition testimony, far weaker evidence than a expert both identifying the standard of care and explaining how it was satisfied.

Medical malpractice defense counsel must carefully consider Rivera when determining whether to move for summary judgment in a given action. Given the holding in Rivera, a practitioner moving for summary judgment will likely need to present an affidavit from a medical expert, and Rivera requires that the expert's name be disclosed. That will result in the plaintiff's attorney learning the expert's identity at the pretrial stage. If the motion is defeated, the plaintiff's attorney will have more time to investigate the expert and obtain information for cross-examination than if the expert's identity is not revealed until trial.

The text of the decision can be found here.

If you require further information regarding the content of this alert, please contact David B. Cabaniss, Chair of our Professional Liability Practice Area, at (518) 429-4279 or


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