Here is a case in which a $ 2 Million dollar medical malpractice verdict is reversed, partially dismissed and sent back for a new trial based upon late CPLR 3101 notice. Practitioners should beware of this particular problem. Notice must be sent within a reasonable time after retention.
"The judgment in favor of the plaintiff was, in part, based upon the jury’s finding that Rosmarin deviated from good and accepted medical practice by not timely shocking the plaintiff three times in succession after the plaintiff developed ventricular fibrillation. The Supreme Court, however, should not have permitted the plaintiff’s expert witness, Rebecca Twersky, to testify at trial as to this and other issues. Twersky was retained on behalf of the plaintiff some time between 1994 and 2002. The trial commenced on November 17, 2002, and Twersky’s identification as an expert witness was not disclosed until December 2, 2002, two weeks after jury selection had commenced. Expert disclosure is of particular importance in medical malpractice actions given their heightened reliance on expert testimony (see Meyer v Zeichner, 263 AD2d 597; Tleige v Troy Pediatrics, 237 AD2d 772, 774). While CPLR 3101(d)(1) vests courts with discretion to allow experts to testify "for good cause shown," here, the Supreme Court improvidently exercised its discretion in admitting the testimony, as the plaintiff failed to establish "good cause" for failing to exchange a proper disclosure as to Twersky within a reasonable time after she had been retained. Accordingly, Rosmarin is entitled to a new trial on the plaintiff’s claim against her alleging professional negligence in failing to timely administer electric shocks. "