S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         3930
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 28, 2015
                                      ___________
       Introduced  by  M. of A. HAWLEY, McDONOUGH, OAKS, CROUCH, KOLB, FINCH --
         Multi-Sponsored by -- M.  of  A.  CORWIN,  GIGLIO  --  read  once  and
         referred to the Committee on Codes
       AN  ACT to amend the civil practice law and rules and the judiciary law,
         in relation to dental, medical and podiatric malpractice  actions  and
         to establishing a limitation on noneconomic damages in personal injury
         actions
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Section 3012-a of the civil  practice  law   and rules,  as
    2  amended  by  chapter  507  of  the  laws  of 1987, is amended to read as
    3  follows:
    4    S 3012-a. Certificate of merit in medical, dental and  podiatric malp-
    5  ractice  actions AND ACTIONS AGAINST ALL OTHER PROFESSIONALS. (a) In any
    6  action  for medical, dental or podiatric malpractice, OR IN  ANY  ACTION
    7  FOR DAMAGES, CONTRIBUTION OR INDEMNITY ARISING OUT OF ALLEGED NEGLIGENCE
    8  OF  A PROFESSIONAL SUBJECT TO THE PROVISIONS OF TITLE VIII OF THE EDUCA-
    9  TION LAW, the complaint shall be accompanied by a certificate,  executed
   10  by the  attorney  for  the plaintiff, OR OTHER PARTY ASSERTING THE CAUSE
   11  OF ACTION, declaring that:
   12    (1)  the attorney has reviewed the facts of the case and has consulted
   13  with at least one physician in medical malpractice actions, at least one
   14  dentist in dental malpractice actions [or], at least one  podiatrist  in
   15  podiatric  malpractice actions, OR AT LEAST ONE PROFESSIONAL IN THE SAME
   16  PROFESSION AS THE PERSON OR PERSONS DEFENDANT IN  THE  SUBJECT  SUIT  IN
   17  OTHER PROFESSIONAL MALPRACTICE OR NEGLIGENCE ACTIONS AND who is licensed
   18  to  practice  in  this  state  or  any  other state and who the attorney
   19  reasonably believes is knowledgeable in the  relevant issues involved in
   20  the particular action, AND WHO HAS SIGNED AN AFFIDAVIT  CONCLUDING  THAT
   21  THERE  IS  A  REASONABLE  BASIS  FOR THE COMMENCEMENT OF AN ACTION, SUCH
   22  AFFIDAVIT SHALL ACCOMPANY THE CERTIFICATE REQUIRED BY THIS SECTION,  and
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02039-01-5
       A. 3930                             2
    1  that  the  attorney  has  concluded  on  the basis of such review [and],
    2  consultation AND AFFIDAVIT that there is a reasonable  basis  for    the
    3  commencement of such action; or
    4    (2)  the  attorney  was  unable to obtain the consultation AND AFFIDA-
    5  VIT required by paragraph one of this subdivision because  a  limitation
    6  of  time,  established  by  article  two  of this chapter, would bar the
    7  action and that the certificate  required  by  paragraph  one   of  this
    8  subdivision  could  not reasonably be obtained before such time expired.
    9  If  a   certificate   is executed   pursuant to  this  subdivision,  the
   10  certificate  required  by this section  shall  be  filed  within  ninety
   11  days  after  service  of  the complaint; or
   12    (3) the attorney was unable to obtain  the  consultation AND AFFIDAVIT
   13  required by paragraph one of this subdivision because the  attorney  had
   14  made  three separate good faith attempts with three separate physicians,
   15  dentists [or], podiatrists OR SUBJECT PROFESSIONALS, in accordance  with
   16  the  provisions  of  paragraph  one  of  this subdivision to obtain such
   17  consultation AND AFFIDAVIT and none of those contacted  would  agree  to
   18  such a consultation AND AFFIDAVIT.
   19    (b) Where a certificate is required pursuant to this section, a single
   20  certificate  shall  be  filed  for  each  action,  even if more than one
   21  defendant has been named in the complaint or is subsequently named.
   22    (c)  Where the attorney intends to rely solely on the doctrine of "res
   23  ipsa  loquitur", this section shall be inapplicable.  In such cases, the
   24  complaint shall be accompanied by a certificate, executed by the  attor-
   25  ney, declaring that the attorney is solely relying on such doctrine and,
   26  for that reason, is not filing a certificate required by this section.
   27    (d)  If  a request by the plaintiff for the records of the plaintiff's
   28  medical or dental treatment by the defendants has  been  made  and  such
   29  records  have  not been produced, the plaintiff shall not be required to
   30  serve the certificate required by this section until ninety  days  after
   31  such records have been produced.
   32    (e) For purposes of this section, and subject  to  the  provisions  of
   33  section  thirty-one hundred one of this chapter, an attorney who submits
   34  a certificate as required by paragraph one or two of subdivision (a)  of
   35  this  section  and  the  physician,  dentist [or], podiatrist OR SUBJECT
   36  PROFESSIONALS with whom the attorney consulted shall not be required  to
   37  disclose  the  identity  of  the  physician, dentist [or], podiatrist OR
   38  SUBJECT PROFESSIONALS consulted and the contents  of  such  consultation
   39  AND  AFFIDAVIT;  provided, however, that when the attorney makes a claim
   40  under paragraph three of subdivision (a) of this  section  that  he  was
   41  unable to obtain the required consultation AND AFFIDAVIT with the physi-
   42  cian,  dentist [or], podiatrist OR SUBJECT PROFESSIONALS, the court may,
   43  upon the request of a defendant made prior to compliance by  the  plain-
   44  tiff with the provisions of section thirty-one hundred ONE of this chap-
   45  ter,  require  the  attorney to divulge to the court the names of physi-
   46  cians, dentists [or], podiatrists OR SUBJECT PROFESSIONALS refusing such
   47  consultation AND AFFIDAVIT.
   48    (f) The provisions of this section shall not be applicable to a plain-
   49  tiff who is not represented by an attorney.
   50    (g) The plaintiff may, in lieu of serving the certificate required  by
   51  this  section,  provide the defendant or defendants with the information
   52  required  by paragraph one  of  subdivision  (d)  of  section thirty-one
   53  hundred one of this chapter within the period of time prescribed by this
   54  section.
   55    (H) THE SUBJECT PROFESSIONAL OR PROFESSIONALS CONSULTED MAY NOT  BE  A
   56  PARTY TO THE LITIGATION.
       A. 3930                             3
    1    (I)  FOR   PURPOSES   OF   THIS  SECTION,  A COMPLAINT SHALL INCLUDE A
    2  COMPLAINT, THIRD PARTY COMPLAINT, AN ANSWER CONTAINING A COUNTERCLAIM OR
    3  A CROSS CLAIM.
    4    S  2.  Subparagraphs (i) and (ii) of paragraph 1 of subdivision (d) of
    5  section 3101 of the civil practice law and rules,  subparagraph  (i)  as
    6  amended  by  chapter  184  of  the laws of 1988 and subparagraph (ii) as
    7  amended by chapter 165 of the laws of  1991,  are  amended  to  read  as
    8  follows:
    9    (i) Upon request, each party shall identify each person whom the party
   10  expects  to  call  as  an  expert witness at trial and shall disclose in
   11  reasonable detail the subject matter on which each expert is expected to
   12  testify, the substance of the facts and opinions on which each expert is
   13  expected to testify, the qualifications of each  expert  witness  and  a
   14  summary of the grounds for each expert's opinion. However, where a party
   15  for  good  cause  shown retains an expert an insufficient period of time
   16  before the commencement of trial to give appropriate notice thereof, the
   17  party shall not thereupon be precluded  from  introducing  the  expert's
   18  testimony  at  the  trial  solely  on grounds of noncompliance with this
   19  paragraph. In that instance, upon motion of any party, made before or at
   20  trial, or on its own initiative, the court may make whatever  order  may
   21  be  just.  [In an action for medical, dental or podiatric malpractice, a
   22  party, in responding to a request, may omit the names of medical, dental
   23  or podiatric experts but shall be required to disclose all other  infor-
   24  mation concerning such experts otherwise required by this paragraph.]
   25    (ii)  In  an  action for medical, dental or podiatric malpractice, any
   26  party may, by written offer made to and served upon  all  other  parties
   27  and  filed  with the court, [offer to disclose the name of, and to] make
   28  available for examination upon oral deposition,  any  person  the  party
   29  making  the  offer expects to call as an expert witness at trial. Within
   30  twenty days of service of the offer, a party shall accept or reject  the
   31  offer  by  serving  a  written  reply upon all parties and filing a copy
   32  thereof with the court.  Failure to serve a reply within twenty days  of
   33  service  of  the  offer shall be deemed a rejection of the offer. If all
   34  parties accept the offer, each party shall be required to produce his or
   35  her expert witness for examination upon oral deposition upon receipt  of
   36  a  notice  to  take  oral  deposition in accordance with rule thirty-one
   37  hundred seven of this [chapter] ARTICLE.  If any party, having  made  or
   38  accepted the offer, fails to make that party's expert available for oral
   39  deposition, that party shall be precluded from offering expert testimony
   40  at the trial of the action.
   41    S  3.  Subdivisions  (b) and (c) of section 5031 of the civil practice
   42  law and rules, as added by chapter 86 of the laws of 2003,  are  amended
   43  to read as follows:
   44    (b)  Awards  for  all  past  damages,  all  damages for future loss of
   45  services, all damages for future loss  of  consortium,  all  damages  in
   46  wrongful  death  actions,  and  damages for future pain and suffering of
   47  [five hundred] FIFTY thousand dollars or less shall be paid  in  a  lump
   48  sum.  In  any case in which all damages are to be paid in lump sums, the
   49  judgment shall be entered on the total of the lump sums, without further
   50  regard to this section.
   51    (c) As to any award of damages for future pain and suffering in excess
   52  of [five hundred] FIFTY thousand dollars, the court shall determine  the
   53  greater  of  thirty-five percent of such damages or [five hundred] FIFTY
   54  thousand dollars and such amount shall  be  paid  in  a  lump  sum.  The
   55  remaining  amount of the award for damages for future pain and suffering
   56  shall be paid in a stream of payments over the period of time determined
       A. 3930                             4
    1  by the trier of fact or eight years, whichever is less.  The  stream  of
    2  payments  for  future pain and suffering shall be calculated by dividing
    3  the remaining amount of damages for future pain  and  suffering  by  the
    4  number  of years over which such payments shall be made to determine the
    5  first year's payment and the payment due in each succeeding  year  shall
    6  be  computed  by adding four percent to the previous year's payment. The
    7  court shall determine the present value of the  stream  of  payments  by
    8  applying a discount rate to the stream of payments.
    9    S  4.  Subdivisions  (b) and (e) of section 5041 of the civil practice
   10  law and rules, as added by chapter 682 of the laws of 1986, are  amended
   11  to read as follows:
   12    (b)  The  court shall enter judgment in lump sum for past damages, for
   13  future damages not in excess of [two hundred]  fifty  thousand  dollars,
   14  and  for  any  damages,  fees  or costs payable in lump sum or otherwise
   15  under subdivisions (c) and (d) of this section. For the purposes of this
   16  section, any lump sum payment of a portion of future  damages  shall  be
   17  deemed  to include the elements of future damages in the same proportion
   18  as such elements comprise of the  total  award  for  future  damages  as
   19  determined by the trier of fact.
   20    (e)  With  respect  to  awards  of  future  damages  in excess of [two
   21  hundred] fifty thousand dollars in an  action  to  recover  damages  for
   22  personal  injury,  injury to property or wrongful death, the court shall
   23  enter judgment as follows:
   24    After making any adjustment prescribed by subdivisions  (b),  (c)  and
   25  (d)  of this section, the court shall enter a judgment for the amount of
   26  the present value of an annuity  contract  that  will  provide  for  the
   27  payment  of the remaining amounts of future damages in periodic install-
   28  ments. The present value of such contract shall be determined in accord-
   29  ance  with  generally  accepted  actuarial  practices  by  applying  the
   30  discount  rate  in effect at the time of the award to the full amount of
   31  the remaining future damages, as calculated pursuant  to  this  subdivi-
   32  sion. The period of time over which such periodic payments shall be made
   33  and the period of time used to calculate the present value of the annui-
   34  ty contract shall be the period of years determined by the trier of fact
   35  in  arriving at the itemized verdict; provided, however, that the period
   36  of time over which such periodic payments shall be made and  the  period
   37  of  time used to calculate the present value for damages attributable to
   38  pain and suffering shall be ten years or the period of  time  determined
   39  by the trier of fact, whichever is less. The court, as part of its judg-
   40  ment,  shall  direct  that  the  defendants and their insurance carriers
   41  shall be required to offer and to guarantee the purchase and payment  of
   42  such  an  annuity contract.  Such annuity contract shall provide for the
   43  payment of the annual payments of such remaining future damages over the
   44  period of time determined  pursuant  to  this  subdivision.  The  annual
   45  payment for the first year shall be calculated by dividing the remaining
   46  amount of future damages by the number of years over which such payments
   47  shall  be  made  and  the  payment  due in each succeeding year shall be
   48  computed by adding four percent to  the  previous  year's  payment.  THE
   49  ADDITION OF FOUR PERCENT TO EACH OF THE PREVIOUS YEAR'S PAYMENT SHALL BE
   50  THE EXCLUSIVE MEASURE OF INTEREST, INFLATION, FOREGONE INVESTMENT OPPOR-
   51  TUNITY  AND  ANY  OTHER MEASURE OF DAMAGE. Where payment of a portion of
   52  the future damages terminates in accordance with the provisions of  this
   53  article,  the  four  percent added payment shall be based only upon that
   54  portion of the  damages  that  remains  subject  to  continued  payment.
   55  Unless  otherwise  agreed, the annual sum so arrived at shall be paid in
   56  equal monthly installments and in advance.
       A. 3930                             5
    1    S 5. The civil practice law and rules is amended by adding a new arti-
    2  cle 50-C to read as follows:
    3                                ARTICLE 50-C
    4                      LIMITATION ON NONECONOMIC DAMAGES
    5  SECTION 5051. DEFINITIONS.
    6          5052. DAMAGE AWARDS.
    7    S 5051. DEFINITIONS. AS USED IN THIS ARTICLE:
    8    1.  "NONECONOMIC DAMAGES" MEANS SUBJECTIVE, NONPECUNIARY DAMAGES ARIS-
    9  ING FROM PAIN, SUFFERING, INCONVENIENCE, PHYSICAL IMPAIRMENT OR  DISFIG-
   10  UREMENT, MENTAL ANGUISH, EMOTIONAL DISTRESS, LOSS OF SOCIETY AND COMPAN-
   11  IONSHIP, LOSS OF CONSORTIUM, INJURY TO REPUTATION, HUMILIATION AND OTHER
   12  NONPECUNIARY DAMAGES.
   13    2.  "ACTUAL  ECONOMIC  DAMAGES" MEANS OBJECTIVELY VERIFIABLE PECUNIARY
   14  DAMAGES ARISING FROM MEDICAL EXPENSES AND MEDICAL CARE, LOSS OF EARNINGS
   15  AND EARNING CAPACITY, BURIAL COSTS, LOSS OF USE OF  PROPERTY,  COSTS  OF
   16  REPAIR  OR REPLACEMENT OF PROPERTY, COSTS OF OBTAINING SUBSTITUTE DOMES-
   17  TIC SERVICES, LOSS OF EMPLOYMENT, LOSS OF BUSINESS OR EMPLOYMENT  OPPOR-
   18  TUNITIES,  REHABILITATION  SERVICES,  CUSTODIAL CARE AND OTHER PECUNIARY
   19  DAMAGES.
   20    3. "PERSONAL INJURY ACTION" MEANS ANY  ACTION,  INCLUDING  BUT  IN  NO
   21  MANNER  LIMITED  TO  MEDICAL,  DENTAL AND PODIATRIC MALPRACTICE ACTIONS,
   22  WHETHER IN TORT, CONTRACT, OR OTHERWISE, IN WHICH  THE  PLAINTIFF  SEEKS
   23  DAMAGES FOR INJURY TO THE PERSON OR WRONGFUL DEATH.
   24    4. "COMPENSATION" MEANS MONETARY AWARDS.
   25    S  5052.  DAMAGE AWARDS. IN ANY PERSONAL INJURY ACTION, THE PREVAILING
   26  PLAINTIFF MAY BE AWARDED:
   27    1. COMPENSATION FOR ACTUAL ECONOMIC DAMAGES SUFFERED  BY  THE  INJURED
   28  PLAINTIFF; AND
   29    2. COMPENSATION FOR NONECONOMIC DAMAGES SUFFERED BY THE INJURED PLAIN-
   30  TIFF, NOT TO EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS.
   31    S  6. Section 474-a of the judiciary law, as amended by chapter 485 of
   32  the laws of 1986, is amended to read as follows:
   33    S 474-a. Contingent fees  for  attorneys  in  claims  or  actions  for
   34  medical,  dental or podiatric malpractice, OR IN ANY CLAIM OR ACTION FOR
   35  PROPERTY DAMAGE OR PERSONAL INJURY, INCLUDING DEATH.  1. For the purpose
   36  of this section, the term "contingent fee" shall mean any attorney's fee
   37  in any claim or action for medical, dental or podiatric malpractice,  OR
   38  IN ANY CLAIM OR ACTION FOR PROPERTY DAMAGE OR PERSONAL INJURY, INCLUDING
   39  DEATH,  whether determined by judgment or settlement, which is dependent
   40  in whole or in part upon the success of the prosecution by the  attorney
   41  of  such  claim or action, or which is to consist of a percentage of any
   42  recovery, or a sum equal to a percentage of any recovery, in such  claim
   43  or action.
   44    2. Notwithstanding any inconsistent judicial rule, a contingent fee in
   45  a  medical,  dental  or podiatric malpractice action, OR IN ANY CLAIM OR
   46  ACTION FOR PROPERTY DAMAGE OR PERSONAL INJURY,  INCLUDING  DEATH,  shall
   47  not  exceed  the  amount  of  compensation provided for in the following
   48  schedule:
   49    [30] 25 percent of the first $250,000 of the sum recovered;
   50    [25] 20 percent of the next $250,000 of the sum recovered;
   51    [20] 15 percent of the next $500,000 of the sum recovered;
   52    [15] 10 percent of the next $250,000 of the sum recovered;
   53    [10] 5 percent of any amount over $1,250,000 of the sum recovered.
   54    3. Such percentages shall be computed on the net sum  recovered  after
   55  deducting  from  the  amount  recovered  expenses  and disbursements for
   56  expert testimony and investigative or other services properly chargeable
       A. 3930                             6
    1  to the enforcement of the claim or prosecution of the action. In comput-
    2  ing the fee, the costs as taxed, including  interest  upon  a  judgment,
    3  shall be deemed part of the amount recovered. For the following or simi-
    4  lar  items  there   shall be no deduction in computing such percentages:
    5  liens, assignments or claims in favor of hospitals,  for  medical  care,
    6  dental  care,  podiatric care and treatment by doctors and nurses, or of
    7  self-insurers or insurance carriers.
    8    4. In the event that claimant's or plaintiff's  attorney  believes  in
    9  good  faith  that  the fee schedule set forth in subdivision two of this
   10  section, because   of extraordinary circumstances,  will  not  give  him
   11  adequate  compensation, application for greater compensation may be made
   12  upon affidavit with written notice and an opportunity to be heard to the
   13  claimant or plaintiff and other persons holding liens or assignments  on
   14  the recovery. Such application shall be made to the justice of the trial
   15  part to which the action had been sent for trial; or, if it had not been
   16  sent  to  a  part  for trial, then to the justice presiding at the trial
   17  term calendar part of the court in which the action had been instituted;
   18  or, if no action had been instituted, then to the justice  presiding  at
   19  the  trial term calendar part of the Supreme Court for the county in the
   20  judicial department in which the  attorney  has  an  office.  Upon  such
   21  application,  the  justice,  in his discretion, if extraordinary circum-
   22  stances are found to be present, and without regard to the claimant's or
   23  plaintiff's consent,  may  fix  as  reasonable  compensation  for  legal
   24  services  rendered an amount greater than that specified in the schedule
   25  set forth in subdivision two of this section,  provided,  however,  that
   26  such  greater  amount  shall  not  exceed  the fee fixed pursuant to the
   27  contractual arrangement, if any, between the claimant or  plaintiff  and
   28  the  attorney.  If  the application is granted, the justice shall make a
   29  written order accordingly, briefly stating the reasons for granting  the
   30  greater  compensation;  and  a copy of such order shall be served on all
   31  persons entitled to receive notice of the application.
   32    5. Any contingent fee in a claim or  action  for  medical,  dental  or
   33  podiatric  malpractice, OR IN ANY CLAIM OR ACTION FOR PROPERTY DAMAGE OR
   34  PERSONAL INJURY, INCLUDING DEATH, brought on behalf of an  infant  shall
   35  continue  to be subject to the provisions of section four hundred seven-
   36  ty-four of this [chapter] ARTICLE.
   37    S 7. This act shall take effect immediately, provided, however, that:
   38    (a) The amendments effected by the provisions of sections one and five
   39  of this act shall apply to subject actions commenced on and  after  such
   40  date; and
   41    (b)  The  amendments effected by the provisions of section six of this
   42  act shall apply to retainer agreements executed on or after such date.