Key Takeaway
Court reverses trial judge's incorrect application of CPLR 3101(d) to treating physicians, reaffirming that disclosure rules only apply to retained experts, not doctors who treated patients.
CPLR 3101(d) Disclosure Rules Don’t Apply to Treating Physicians
Personal injury litigation often involves testimony from various medical professionals, but not all doctors are subject to the same pre-trial disclosure requirements. A recent Second Department decision provides a clear reminder that CPLR 3101(d) expert disclosure rules have specific limitations that trial courts must respect.
CPLR 3101(d) requires parties to provide advance notice when they intend to call retained experts at trial. However, this rule has never applied to treating physicians who examined or treated a plaintiff as part of their medical care. The distinction matters significantly in personal injury cases, where treating physicians often provide crucial testimony about causation and the extent of injuries.
Understanding when disclosure requirements apply becomes especially important when dealing with complex medical testimony or situations involving multiple medical opinions about injury causation.
Jason Tenenbaum’s Analysis:
Duman v Scharf, 2020 NY Slip Op 04537 (2d Dept. 2020)
“At the damages phase of the trial, the defendants called as a witness one of the plaintiff’s treating physicians, who had examined the plaintiff following the accident and concluded in his medical report that “he symptoms that is experiencing in the right-sided extremity are likely related to previous stroke.” However, the Supreme Court ruled that the treating physician would be precluded from testifying on the issue of causation based on the defendants’ failure to provide the plaintiff with notice of such testimony in advance of trial pursuant to CPLR 3101(d). Counsel for the defendants provided the Supreme Court with precedent from this Court indicating that CPLR 3101(d) applied only to experts retained to give testimony at trial, and not to treating physicians. Nevertheless, despite noting a 1999 decision from this Court supporting the defendants’ position, the Supreme Court adhered to its determination to preclude the proposed testimony.”
LOL. reversed.
Key Takeaway
The Second Department reversed a trial court’s erroneous application of CPLR 3101(d) to a treating physician’s testimony. This decision reinforces established precedent that disclosure requirements for expert witnesses only apply to retained experts, not to physicians who treated the plaintiff as part of regular medical care.
