Identity crisis: the obsolescence of Jasopersaud v. Rho and the medical malpractice expert exception.

AuthorShifton, Mark D.
PositionNew York

INTRODUCTION

During a recent thriller directed by the late Stanley Kubrick, (1) Tom Cruise, playing Doctor William Harford, embarks on a voyage of both geographic and psychological distance. Under the spell of extreme jealousy, he walks the streets of New York City seeking to understand the societal forces affecting his emotions. In one of the film's most gripping scenes, Harford is drawn into a conspicuous display of wealth, power, and intrigue. While mesmerized by the events unfolding around him, he remains masked; his identity hidden from the anonymous participants, both physically, and to a possibly greater extent, psychologically. In a shocking turn, Harford is confronted, unmasked, and humiliated. The anonymous horde discovers his identity and before long Harford nearly loses his spouse, his medical practice, and his life.

Although Harford's desperate desire to shield his identity--and the group's efforts to identify him--may seem like sheer fiction, similar efforts occur every day among New York State medical malpractice attorneys. Desperate parties go to extreme lengths to identify their adversaries' experts, while their opponents struggle to block their efforts. Experts that are ultimately unmasked fear the loss of their practices, income, and professional lives.

This Comment discusses the provision of the New York Civil Practice Law and Rules ("CPLR") governing the disclosure of medical malpractice expert witnesses, and how medical malpractice litigants strive to protect the identities of their experts. (2) Part I of this Comment discusses the applicable CPLR provision, beginning with the 1985 amendments to CPLR 3101, (3) which, as part of medical malpractice reform legislation, sought to broaden discovery within civil litigation. (4) Part I will also highlight the medical malpractice expert exception provided by CPLR 3101(d)(1)(i), which applies solely to experts testifying in medical, dental, or podiatric malpractice actions. (5)

Part II of this Comment discusses the initial judicial decisions dealing with the amended CPLR 3101, and how courts initially struggled to apply the medical malpractice expert exception. (6) Part III discusses the Appellate Division, Second Department case Jasopersaud v. Rho, (7) which attempted to create a workable standard to further the competing goals of CPLR 3101(d)(l)(i). (8) Part III also examines cases from the various Departments that have interpreted and analyzed Jasopersaud. (9) Part IV of this Comment discusses the Appellate Division, Second Department's 2002 decision Thomas v. Alleyne. (10)

Part V discusses whether the policy goals behind the medical malpractice exception remain viable, (11) and asks whether, in light of evolving technology, any test that seeks to further the dual goals of CPLR 3101(d)(1)(i) can work. (12) Finally, Part V concludes that to create judicial consistency among the Departments, either the Court of Appeals must take up the issue and create a uniform standard for lower courts to follow, or the New York State Legislature must either amend CPLR 3101(d)(1)(i) or repeal the medical malpractice expert exception entirely.

  1. BACKGROUND ON CPLR DISCLOSURE PROVISIONS

    CPLR 3101 is the central rule governing disclosure within civil actions. The text of CPLR 3101 suggests that the New York State Legislature intended to provide for broad information exchange among civil litigants. (13) Indeed, the Legislature intended CPLR 3101 to closely parallel its federal counterpart, Rule 26 of the Federal Rules of Civil Procedure. (14)

    CPLR 3101 also provides for the disclosure of expert information. (15) Upon request, litigants must disclose specific background information pertaining to their experts. (16) To comply with Rule 3101, the litigant must

    [I]dentify each person whom the party expects to call as an expert witness at trial ... [disclose] in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and the opinions on which each expert is expected to testify, the qualifications of each expert witness, and a summary of the grounds of each expert's opinion. (17) A litigant who fails to abide by CPLR 3101's disclosure mandates may be precluded from offering the expert at trial. (18)

    CPLR 3101's disclosure requirements were enacted in 1985 as part of an effort to reform medical malpractice litigation in New York. (19) Seeking to stem the perceived tide of rising medical insurance premiums and judicial delays created by meritless claims, the New York State Legislature broadened CPLR 3101's disclosure provisions. (20) The Medical Malpractice Reform Act of 1985 (the "1985 Act") amended various provisions in the Public Health Law, (21) CPLR, (22) Education Law, (23 Insurance Law, (24) and Judiciary Law. (25)

    The New York State Legislature intended the amended CPLR 3101 to streamline medical malpractice litigation, provide for prompt settlements, and discourage groundless claims. (26) Indeed, a report from the New York State Executive Department recognized the Legislature's intention that the amended expert disclosure provisions would foster broad information exchange among medical malpractice litigants:

    Although virtually all other information is now shared by litigants in civil practice, information concerning expert witnesses and their opinions remains shielded from disclosure. Since the testimony of expert witnesses is often the single most important element of proof in medical malpractice and other personal injury actions, sharing information concerning these opinions encourages prompt settlement by providing both parties an accurate measure of the strength of their adversaries' case. In addition, both parties will be discouraged from asserting unsupportable claims or defenses, knowing that they will be required to disclose what, if any, expert evidence will support their allegations. (27) While the amendments to CPLR 3101 sought to bring a much needed modernization to the expert witness disclosure process in civil actions generally, they had a narrower impact on medical malpractice litigants. Attempting to avoid "unique problems" (28) related to medical malpractice actions, the New York State Legislature exempted medical malpractice litigants from one specific requirement provided by the amended provision--the requirement that a litigant identify her expert. (29)

    1. The Medical Malpractice Expert Exception

    Under CPLR 3101, as amended by the 1985 Act, a medical malpractice litigant may refrain from disclosing the name of the expert she intends to rely upon. (30) The medical malpractice expert exception was enacted in response to concerns of possible harassment, annoyance, or embarrassment directed at medical malpractice expert witnesses by their colleagues, who might attempt to discourage their testimony. (31) Many decisions dealing with the medical malpractice expert exception have reiterated this concern as an important policy goal, one which acts as a counterweight to the CPLR's goal of broad disclosure. (32)

    The New York State Legislature's concern for medical malpractice expert harassment resulted from New York's historical reliance on the "locality rule" in medical malpractice actions. According to the locality rule, the standard of care necessary to prove medical malpractice was based on geographic proximity--plaintiffs were required to show a violation of the standard of care particular to a specific locality. (33) This limitation required plaintiffs to retain experts familiar with the locality where the action was brought--experts who presumably might have worked alongside the doctors they were retained to testify against. (34)

  2. POST-1985 ACT DECISIONS

    Soon after the passage of the 1985 Act, the Second Department was confronted with the issue of possible inadvertent expert disclosure in Catino v. Kirschbaum. (35) The defendant served a demand for the plaintiff's expert's qualifications under CPLR 3101, (36) and the plaintiff moved for a protective order. (37) Affirming the trial court's denial of the protective order, the Second Department noted that "[w]hile CPLR 3101(d)(1)(i) grants a party the right to not disclose the name of a prospective medical expert, its underlying purpose is not to preclude any possibility of identifying an adversary's medical expert.... " (38) Narrowly reading the medical malpractice expert exception, the court essentially held that CPLR 3101(d)(1)(i) provides the medical malpractice litigant with the "procedural" right to omit the name of her expert, not the "substantive" right to actually protect an expert's identity. (39)

    Five months later, however, the Second Department turned around and broadened its reading of the exception. In Jones v. Putnam Hospital Center, the court held that a "request for further information as to [a medical] expert's qualifications was palpably improper since it would effectively lead to disclosure of the expert's identity." (40) The Second Department did not have occasion to rectify this patent inconsistency until four years later. (41)

    The Third Department, in Pizzi v. Muccia, analyzed the competing policy goals behind the medical malpractice expert exception a bit more thoroughly than had the Second Department. (42) In Pizzi, the court held that while a detailed demand for expert disclosure "would have the net effect of disclosing the experts' identities," the plaintiff seeking to protect an expert's identity should bear the burden of showing that disclosure would likely identify the expert. (43) Only upon such a showing would the court grant a motion for a protective order. (44)

    Other courts across New York State were similarly struggling to apply the exception. In Avila v. New York, the Court of Claims seemingly vitiated the exception by denying the defendant's motion for a protective order, and holding all demanded information disclosable under the "qualifications" clause of CPLR 3101(d). (45) The defendant...

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