The Appellate Division, Third Department in Schultz v Albany Med. Ctr. recently affirmed the dismissal of a medical malpractice and wrongful death action, and late expert witness disclosure was the plaintiff's undoing. 

The plaintiff, acting on behalf of his deceased wife, alleged negligent medical care during her hospitalization, focusing on a surgery and her post-operative supervision. During the discovery phase of the case, the trial court set and repeatedly extended dealines through 2022. The plaintiff disclosed only one expert–a forensic pathologist–when the note of issue was filed. Notably, the disclosure was without a summary of expected testimony required under CPLR 3101 (d) (1).

The defendant disclosed three experts–a gastroenterologist, oncologist/hematologist, and pathologist–and moved for summary judgment. In opposition to the motion, the plaintiff attempted to introduce a new expert–a surgeon. Supreme Court denied the plaintiff's request to supplement his expert disclosure with the new expert and granted the defendant's motion for summary judgment.

On appeal, the Third Department found that Supreme Court did not abuse its discretion in precluding the plaintiff's late disclosure. The Third Department rejected the plaintiff's argument that prior disclosure reserved the right to supplement expert disclosure and referenced that additional expert witnessesses who were reviewing the case "may become available" prior to trial. In affirming the preclusion, the Third Department reasoned that (1) the plaintiff offerered no good cause for disclosing the second expert only after the summary judgment motion and seven months post-note of issue, and (2) the new expert addressed a different subject than the previously discussed disclosed expert.

The Third Department also concluded that Supreme Court's grant of summary judgment to the defendant was warranted because (1) the defendant's experts established that the care met accepted medical standards, and (2) the plaintiff's only rebuttal–his pathologist's affidavit–failed to address the standard of care, deviations, or causation related to the actual treatment or death.

This case reinforces that timely and specific expert disclsures are critical in malpractice litigation; in fact, they are critical in any litigation. Courts will preclude late disclosures absent good cause, especially late disclosures post-note of issue. Without competent, admissible expert evidence on deviation and causation, a court will likely grant summary judgment in a malpractice case. 

This malpractice action was commenced in Albany County, New York, which is part of the 3rd Judicial District. The District has an expert disclosure rule that practitioners should take note of.

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