Case Analysis and Expert Retention in a Medical Malpractice Case

By: Michael A. Sonkin
Friday, May 16, 2014

One of the most distressing moments a physician, nurse or other healthcare provider can experience is when learning he or she has been named as a defendant in a medical malpractice lawsuit. Among the first questions posed to defense counsel is how the individual can be dropped from the litigation. How this can be accomplished varies, depending on the stage of the case. 

For instance, if another defendant, such as a hospital, appears to be the “target,” the plaintiff’s counsel will sometimes agree to discontinue against a nurse, resident or attending physician shortly after the initiation of the case. However, this is not always possible due to potential prejudice the plaintiff may suffer if the client is later found to be more involved than initially appreciated.

Another method that is sometimes successful in medical malpractice actions is a summary judgment motion. This is a formal request to the court to obtain a judgment in a party’s favor without the need for trial, or to clarify what issues will be raised at trial. Summary judgment can be used to seek dismissal of the entire case or particular claims, for example a claim for lack of informed consent. A successful summary judgment motion must demonstrate there are “no genuine issues of material fact,” essentially meaning a judge or jury could not find for the opposing party based on the facts. A key component of such a motion in a medical malpractice action is an affirmation or affidavit from an expert physician attesting to the care rendered and explaining why it was consistent with the standard of practice and/or did not cause the injury claimed by the patient. Motions for summary judgment are made after the close of the “discovery” phase of the lawsuit, during which each party obtains evidence through production of medical records, depositions and other formal demands for information.

Recent developments in the law have made the use of summary judgment motions more challenging. New York law requires that upon request, each party must identify whom that party expects to call as an expert witness at trial. For many years, this “expert disclosure” requirement was applied only to experts who would testify at trial, but several recent decisions from the state’s appellate courts have extended it to summary judgment motions and in some instances have “precluded” an expert affirmation because of untimely expert disclosure. A defendant whose expert affirmation is precluded forfeits the opportunity to have the case dismissed on summary judgment, meaning the case must be resolved by trial or settlement.

New York’s appellate courts have issued decisions over the past few years both for and against precluding an expert’s affirmation due to what the court considers to be untimely expert disclosure. Unfortunately, there has been no clear resolution to date as to an exact timetable for disclosing expert information. Therefore, to avoid the risk of preclusion and losing the opportunity to obtain summary judgment, it is crucial that counsel disclose the expert’s information prior to the completion of the discovery phase.

It is important to analyze a case in its early stages to explore possible ways to dispose of it before trial. If there is a potential basis for making a summary judgment motion or if it is necessary to oppose a summary judgment motion by the plaintiff, early expert retention is recommended so that the case can be thoroughly reviewed and an expert can support the motion. Disclosure of the expert during discovery can avoid preclusion, and if the motion is successful, the burden and expense of a trial can be avoided.

Michael A SonkinMichael A. Sonkin is a Senior Partner and Managing Partner at Martin Clearwater & Bell LLP. His legal practice primarily encompasses medical malpractice matters in which he defends individual physicians and major teaching hospitals from inception through trial. For more information, visit