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ALBANY – A statute that permits medical experts to issue anonymous opinions during “trial preparation” does not extend to the moving party in a summary judgment motion, a unanimous upstate appellate panel has held.

The Appellate Division, Third Department, on Thursday said the moving party in a summary judgment motion may not withhold experts’ identities.

“Requiring a movant to reveal an expert’s identity in such circumstances would allow a nonmovant to meaningfully pursue information such as whether that expert has ever espoused a contradictory opinion, whether the individual is actually a recognized expert and whether that individual has been discredited in the relevant file prior to any possible resolution of the case on the motion,” Justice William McCarthy (See Profile) wrote for the court in Rivera v. Albany Medical Center Hospital, 517912.

The decision stemmed from a malpractice action involving a patient who underwent surgery for Hirschsprung’s disease, a condition involving rectal nerve cells, and allegedly suffered permanent erectile dysfunction as a result of the procedure.

Albany Medical Center Hospital, the defendant, moved for summary judgment based in part on medical affidavit in which the expert’s name was redacted. In the affidavit, the expert opined on the medical appropriateness of the patient’s care and the adequacy of the pre-surgery warnings that were provided. An unredacted version of the affidavit was submitted to Supreme Court Justice Joseph Sise of Montgomery County for in camera review.

“Because defendants were the movants for summary judgment, their submission of an anonymous expert affidavit was incompetent evidence nor proper for consideration,” McCarthy wrote in an opinion affirming Sise.

McCarthy said that while the Legislature has, through CPLR 3101, shielded the identities of medical experts during the preparatory stage of a trial, it “has shown no broad intention of protecting experts from accountability at the point where their opinions are employed for the purpose of judicially resolving a case or a cause of action.” The court found “no compelling reason to allow for such anonymity that would outweigh the benefit that accountability provides in promoting candor.”

McCarthy, joined by justices John Lahtinen (See Profile), Elizabeth Garry (See Profile), Michael Lynch (See Profile) and Christine Clark (See Profile), suggested there is a strong practical argument against allowing medical experts to shield their identity.

“Any expert who anticipates a future opportunity to espouse a contradictory opinion would be on notice that public record could be used to hold him or her to account for any unwarranted discrepancy between such opinions,” the court said.

McCarthy said the competent evidence submitted by the defendants, such as medical records and deposition testimony from the treating physician, failed to establish “either that the physician provided care that did not depart from the accepted standards of practice or that the care did not injure plaintiff,” and consequently Sise properly denied the motion for summary judgment.

“Further, plaintiff’s testimony that he would not have chosen to have the surgery had he been properly informed of the risk of sexual dysfunction is sufficient to raise a triable issue of fact as to whether a fully informed reasonable person would have elected for the surgery,” McCarthy wrote.

The court’s reasoning on the identity of medical witnesses apparently marks the first time the Third Department has considered the issue, but the ruling closely parallels one issued by the Appellate Division, Second Department, in 1998.

In Marano v. Mercy Hospital, 241 AD2d 48, the Second Department said in a first impression ruling that “it is well settled that a party opposing a summary judgment motion in a medical, dental, or podiatric malpractice case may do so without disclosing the identity of the medical experts upon whose opinions that party relies.” The court went on to say, for the first time, that “a party moving for summary judgment may not do so without revealing the identity of that party’s experts.”

The appeal was argued May 27 by Gregory Schaaf, an associate at Englert, Coffey, McHugh & Fantauzzi in Schenectady for the plaintiff and Robert Rausch, a partner at Maynard, O’Connor, Smith & Catilanotto in Albany, for the defendants.

Rausch said the ruling represents a shift in practice in the Third Department, where traditionally the names of experts are “hidden” until trial.

“As near as I can tell, this is the first time the Third Department has adopted the [Marano] line of cases from the Second Department,” Rausch said. “Proponents of motions for summary judgment in medical malpractice actions had previously submitted expert affidavits with the name redacted. That has been the practice.”

Schaaf said, “We are obviously very pleased with the decision and believe the court came to the right conclusion.”