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The Importance of an Expert Witness Reply in a Medical Malpractice Case

What is an expert witness reply in a New York medical malpractice case?

An expert witness reply means each side has to notify the other side about whatever experts they have retained to testify at trial. For instance, once the plaintiff has hired a medical expert to come and testify at trial, the plaintiff will have to provide the defense with a written notice or document, which is called 3101(d) reply. It refers to civil practice laws and rules in New York, 3101(d) refers to the specific section, and in common parlance it is called an expert witness reply.

What does it contain?

Within the expert witness reply, the attorney will have to provide the doctor's or expert witness's credentials. This means, where the doctor did his medical school, where he did his post-graduate training, whether the doctor has a current license to practice medicine in the state of New York, and whether the doctor is board certified in a particular field of medicine. The lawyer will have to provide his adversary sufficient information to let them know what the experts are going to be talking about, when they come and testify at trial.

More importantly, the lawyer will have to tell the other side, on what basis the doctor has been able to reach those opinions and conclusions that he will be presenting at trial. Usually, the lawyer will say that the expert witnesses have reached their conclusions based on the medical records in the case, based upon the pretrial testimony that have been given, and the testimony that will be given at the time of the trial.

Why is the information provided in an expert witness reply vital?

Interestingly, the lawyer is not required to divulge the names of the medical experts that are going to testify in a medical malpractice case. However, it is very easy now, for the other side, to feed in the doctor's credentials and with the help of search engines and different software, to find the name of the particular expert. Why would they want to know the identity of the witness?

Well, the defense will then be able to go ahead and dig up any transcripts of testimonies the doctor has given in the past. This will reveal if there are any contradictions between the testimonies he has given and the testimony he is about to give in this particular case at trial.

Both sides will be able to undertake detailed investigation about the witnesses, once they receive the expert witness reply. The plaintiff or the defense will have to find out:

  • Who the expert is
  • Whether he has given any prior testimonies to see if there is contradicting information
  • Try to uncover personal information on the expert that would hinder or hurt the expert's credibility

Therefore, the expert witness reply document holds critical information that can help each side prepare an answer or defense to what the expert is going to state in their testimony.

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