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State weighs changes in med mal testimony

iStock image used with permission.

Although federal law and every other state in the nation requires disclosing the identity of expert witnesses in medical malpractice cases, New York only requires each side to indicate experts’ basic credentials, qualifications and a rough outline of their argument.

Legislation introduced by state Senate Health Committee Chairman Kemp Hannon would end anonymity and allow for depositions, which would make it easier for both sides to prepare for trial. While malpractice insurers are in favor of the measure, plaintiffs say it could lead to increased delays and costs.

“New York state’s the only state in the country that allows an expert witness not to be identified until trial,” said Morris Auster, counsel division of governmental affairs for the Medical Society of the State of New York. “We want to change that.”
Medical malpractice also is the only area in state law where experts are not required to be identified before trial.

Medical malpractice insurers see identifying expert witnesses and their qualifications as creating a fairer playing field where each side, as in the rest of the judicial system, can better prepare.

“I call it trial by ambush where neither side has to disclose who their expert is,” said Edward Amsler, counsel for Medical Liability Mutual Insurance Co., the state’s biggest malpractice insurer. “Nor can you subject the subject to a deposition, so before trial you know what the expert will say.”

Hannon’s bill states this anonymity “applies to no other type of action in New York state, and runs completely contrary to the whole premise of modern jurisprudence, which seeks the early and complete exchange of information between litigants.”

Plaintiffs’ attorneys, however, argue identifying medical experts early will lead not simply to better preparation, but bigger problems, more pressure on experts, longer delays and greater costs.

“I’ll give you one word,” Nicholas Timko, president of the New York State Trial Lawyers Association, said of the risk of identifying experts: “Intimidation.”

He argues secrecy helps insulate doctors from influences of other doctors, insurers and attorneys before trial, ranging from country club comments (why testify against a colleague?) to insurance company pressure, since a doctor may be testifying against his own insurer.

The Medical Society of the State of New York, however, believes anonymity provides not protection, but uncertainty that disguises the merits and flaws of a case, including experts’ own potential lack of expertise.

The society also supports the legislation’s provisions requiring medical experts work in the specialty at issue, rather than allowing attorneys to select experts at will.

States including New Jersey and Connecticut require physicians serving as expert witnesses in medical malpractice cases to be in the same specialty as the physician named in a suit or routinely perform the procedure at issue, according to the American Medical Association.

Timko worries strict limitations, rather than attorneys’ discretion and judges’ authority, could be used to block appropriate experts and force plaintiffs to find experts in fields with few willing to testify.

“Sometimes these cases overlap,” Timko said, noting a gynecologist might make an error with patients suffering from cancer. “And you’re calling a gynecologist to testify? It’s also an oncology issue.”

Timko also questioned the argument that plaintiffs benefit by using unqualified experts, since bringing in inappropriate expertise is unlikely to win over judges or juries.

“If I bring a case that has no merit and has no expert, I can’t win in court,” he said. “So I’ll invest my time and money to bring a lawsuit I’ll ultimately lose? Since I work on a contingency fee, I’ll lose the money I invested in it.”