Bill Text: NY A04381 | 2011-2012 | General Assembly | Introduced
Bill Title: Enacts the "medical liability reform act"; requires attorney for plaintiff in a medical, dental or podiatric malpractice case to include with the certificate of merit, an affidavit of an appropriate medical professional licensed in this state stating that there is a reasonable basis for such malpractice action; failure to file will result in dismissal; modifies limited liability of persons jointly liable; limits noneconomic damages in such causes of action to $250,000; requires enhanced and comprehensive disclosure of expert witnesses to be used by any party in medical, dental and podiatric malpractice cases.
Spectrum: Slight Partisan Bill (Republican 9-5)
Status: (Introduced - Dead) 2012-01-04 - referred to judiciary [A04381 Detail]
Download: New_York-2011-A04381-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4381
2011-2012 Regular Sessions
I N A S S E M B L Y
February 3, 2011
___________
Introduced by M. of A. SCHIMMINGER, MAGEE, REILLY, TOBACCO, KOLB --
Multi-Sponsored by -- M. of A. BARCLAY, CASTELLI, CROUCH, GALEF,
HAWLEY, J. MILLER, TOWNS -- read once and referred to the Committee on
Judiciary
AN ACT to amend the civil practice law and rules, in relation to enact-
ing the "medical liability reform act"; and to repeal subparagraph
(ii) of paragraph 1 of subdivision (d) of section 3101 of such law and
rules relating to disclosure of expert witnesses in medical, dental
and podiatric medical malpractice actions
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "medical liability reform act".
3 S 2. Section 3012-a of the civil practice law and rules, as amended by
4 chapter 507 of the laws of 1987, is amended to read as follows:
5 S 3012-a. Certificate of merit in medical, dental and podiatric malp-
6 ractice actions. (a) In any action for medical, dental or podiatric
7 malpractice, the complaint shall be accompanied by a certificate,
8 executed by the attorney for the plaintiff, declaring that:
9 (1) the attorney has reviewed the facts of the case and has consulted
10 with at least one physician in medical malpractice actions, at least one
11 dentist in dental malpractice actions or at least one podiatrist in
12 podiatric malpractice actions who is licensed to practice in this state
13 [or any other state] and who the attorney reasonably believes is know-
14 ledgeable in the relevant issues involved in the particular action, AND
15 WHO HAS SIGNED AN AFFIDAVIT CONCLUDING THAT THERE IS A REASONABLE BASIS
16 FOR THE COMMENCEMENT OF AN ACTION, WITH SUCH AFFIDAVIT TO ACCOMPANY THE
17 CERTIFICATE REQUIRED BY THIS SECTION, and that the attorney has
18 concluded on the basis of such review [and], consultation AND AFFIDAVIT
19 that there is a reasonable basis for the commencement of such action; or
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08781-01-1
A. 4381 2
1 (2) the attorney was unable to obtain the consultation AND AFFIDAVIT
2 required by paragraph one of this subdivision because a limitation of
3 time, established by article two of this chapter, would bar the action
4 and that the certificate required by paragraph one of this subdivision
5 could not reasonably be obtained before such time expired. If a certif-
6 icate is executed pursuant to this subdivision, the certificate required
7 by this section shall be filed within ninety days after service of the
8 complaint; or
9 (3) the attorney was unable to obtain the consultation AND AFFIDAVIT
10 required by paragraph one of this subdivision because the attorney had
11 made three separate good faith attempts with three separate physicians,
12 dentists or podiatrists, in accordance with the provisions of paragraph
13 one of this subdivision to obtain such consultation and none of those
14 contacted would agree to such a consultation.
15 (b) Where a certificate is required pursuant to this section, a single
16 certificate shall be filed for each action, even if more than one
17 defendant has been named in the complaint or is subsequently named.
18 (c) Where the attorney intends to rely solely on the doctrine of "res
19 ipsa loquitur", this section shall be inapplicable. In such cases, the
20 complaint shall be accompanied by a certificate, executed by the attor-
21 ney, declaring that the attorney is solely relying on such doctrine and,
22 for that reason, is not filing a certificate required by this section.
23 (d) If a request by the plaintiff for the records of the plaintiff's
24 medical or dental treatment by the defendants has been made and such
25 records have not been produced, the plaintiff shall not be required to
26 serve the certificate required by this section until ninety days after
27 such records have been produced.
28 (e) [For purposes of this section, and subject to the provisions of
29 section thirty-one hundred one of this chapter, an attorney who submits
30 a certificate as required by paragraph one or two of subdivision (a) of
31 this section and the physician, dentist or podiatrist with whom the
32 attorney consulted shall not be required to disclose the identity of the
33 physician, dentist or podiatrist consulted and the contents of such
34 consultation; provided, however, that when the] WHEN AN attorney makes a
35 claim under paragraph three of subdivision (a) of this section that he
36 OR SHE was unable to obtain the required consultation AND AFFIDAVIT with
37 the physician, dentist or podiatrist, the court may, upon the request of
38 a defendant made prior to compliance by the plaintiff with the
39 provisions of [section thirty-one hundred] ARTICLE THIRTY-ONE of this
40 chapter, require the attorney to divulge to the court the names of
41 physicians, dentists or podiatrists refusing such consultation.
42 (f) The provisions of this section shall not be applicable to a plain-
43 tiff who is not represented by an attorney.
44 (g) The plaintiff may, in lieu of serving the certificate AND AFFIDA-
45 VIT required by this section, provide the defendant or defendants with
46 the information required by paragraph one of subdivision (d) of section
47 thirty-one hundred one of this chapter within the period of time
48 prescribed by this section.
49 (H) WHERE A CERTIFICATE AND AFFIDAVIT IS REQUIRED PURSUANT TO THIS
50 SECTION, THE FAILURE TO TIMELY FILE SUCH CERTIFICATE AND AFFIDAVIT SHALL
51 REQUIRE THAT THE ACTION BE DEEMED A DISMISSAL OF THE COMPLAINT FOR
52 NEGLECT TO FILE THE ACTION FOR THE PURPOSES OF SECTION TWO HUNDRED FIVE
53 OF THIS CHAPTER.
54 S 3. Section 1600 of the civil practice law and rules, as added by
55 chapter 682 of the laws of 1986, is amended to read as follows:
A. 4381 3
1 S 1600. Definitions. As used in this article [the term "non-economic
2 loss" includes but is not limited to pain and suffering, mental anguish,
3 loss of consortium or other damages for non-economic loss]:
4 1. "NONECONOMIC DAMAGES" MEANS NONPECUNIARY DAMAGES ARISING FROM PAIN,
5 SUFFERING, INCONVENIENCE, PHYSICAL IMPAIRMENT OR DISFIGUREMENT, MENTAL
6 ANGUISH, EMOTIONAL DISTRESS, LOSS OF SOCIETY AND COMPANIONSHIP, LOSS OF
7 CONSORTIUM, INJURY TO REPUTATION, HUMILIATION AND ALL OTHER NONPECUNIARY
8 DAMAGES.
9 2. "ACTUAL ECONOMIC DAMAGES" MEANS OBJECTIVELY VERIFIABLE PECUNIARY
10 DAMAGES ARISING FROM MEDICAL EXPENSES AND MEDICAL CARE, LOSS OF EARNINGS
11 AND EARNING CAPACITY, BURIAL COSTS, LOSS OF USE OF PROPERTY, LOSS OF
12 GUIDANCE, COSTS OF REPAIR OR REPLACEMENT OF PROPERTY, COSTS OF OBTAINING
13 SUBSTITUTE DOMESTIC SERVICES, LOSS OF EMPLOYMENT, LOSS OF BUSINESS OR
14 EMPLOYMENT OPPORTUNITIES, REHABILITATION SERVICES, CUSTODIAL CARE AND
15 ALL OTHER PECUNIARY DAMAGES.
16 S 4. Section 1601 of the civil practice law and rules, as added by
17 chapter 682 of the laws of 1986 and subdivision 1 as amended by chapter
18 635 of the laws of 1996, is amended to read as follows:
19 S 1601. Limited liability of persons jointly liable. 1. Notwith-
20 standing any other provision of law, when a verdict or decision in an
21 action or claim for personal injury is determined in favor of a claimant
22 in an action involving two or more tortfeasors jointly liable or in a
23 claim against the state [and the liability of a defendant is found to be
24 fifty percent or less of the total liability assigned to all persons
25 liable], the liability of [such] A defendant to the claimant for [non-e-
26 conomic loss] THE CLAIMANT'S ACTUAL ECONOMIC DAMAGES AND NONECONOMIC
27 DAMAGES shall not exceed that defendant's equitable share determined in
28 accordance with the relative culpability of each person causing or
29 contributing to the total liability for [non-economic loss] THE CLAIM-
30 ANT'S ACTUAL ECONOMIC DAMAGES AND NONECONOMIC DAMAGES; provided, however
31 that the culpable conduct of any person not a party to the action shall
32 not be considered in determining any equitable share herein if the
33 claimant proves that with due diligence he or she was unable to obtain
34 jurisdiction over such person in said action (or in a claim against the
35 state, in a court of this state); and further provided that the culpable
36 conduct of any person shall not be considered in determining any equita-
37 ble share herein to the extent that action against such person is barred
38 because the claimant has not sustained a "grave injury" as defined in
39 section eleven of the workers' compensation law.
40 2. Nothing in this section shall be construed to affect or impair any
41 right of a tortfeasor under section 15-108 of the general obligations
42 law.
43 S 5. The civil practice law and rules is amended by adding a new arti-
44 cle 50-C to read as follows:
45 ARTICLE 50-C
46 LIMITATION ON NONECONOMIC
47 DAMAGES
48 SECTION 5051. DEFINITIONS.
49 5052. DAMAGE AWARDS.
50 S 5051. DEFINITIONS. AS USED IN THIS ARTICLE:
51 1. "NONECONOMIC DAMAGES" MEANS NONPECUNIARY DAMAGES ARISING FROM PAIN,
52 SUFFERING, INCONVENIENCE, PHYSICAL IMPAIRMENT OR DISFIGUREMENT, MENTAL
53 ANGUISH, EMOTIONAL DISTRESS, LOSS OF SOCIETY AND COMPANIONSHIP, LOSS OF
54 CONSORTIUM, INJURY TO REPUTATION, HUMILIATION AND ALL OTHER NONPECUNIARY
55 DAMAGES.
A. 4381 4
1 2. "ACTUAL ECONOMIC DAMAGES" MEANS OBJECTIVELY VERIFIABLE PECUNIARY
2 DAMAGES ARISING FROM MEDICAL EXPENSES AND MEDICAL CARE, LOSS OF EARNINGS
3 AND EARNING CAPACITY, BURIAL COSTS, LOSS OF USE OF PROPERTY, LOSS OF
4 GUIDANCE, COSTS OF REPAIR OR REPLACEMENT OF PROPERTY, COSTS OF OBTAINING
5 SUBSTITUTE DOMESTIC SERVICES, LOSS OF EMPLOYMENT, LOSS OF BUSINESS OR
6 EMPLOYMENT OPPORTUNITIES, REHABILITATION SERVICES, CUSTODIAL CARE AND
7 ALL OTHER PECUNIARY DAMAGES.
8 3. "PERSONAL INJURY ACTION" MEANS ANY ACTION, INCLUDING BUT IN NO
9 MANNER LIMITED TO MEDICAL, DENTAL AND PODIATRIC MALPRACTICE ACTIONS,
10 WHETHER IN TORT, CONTRACT OR OTHERWISE, IN WHICH THE PLAINTIFF SEEKS
11 DAMAGES FOR INJURY TO THE PERSON OR WRONGFUL DEATH.
12 4. "COMPENSATION" MEANS MONETARY AWARDS.
13 S 5052. DAMAGE AWARDS. 1. IN ANY PERSONAL INJURY ACTION, THE PREVAIL-
14 ING PLAINTIFF OR PERSON WHO CLAIMS INJURY BY OR THROUGH SUCH INJURED
15 PLAINTIFF MAY BE AWARDED:
16 (A) COMPENSATION FOR ACTUAL ECONOMIC DAMAGES SUFFERED BY THE INJURED
17 PLAINTIFF OR OTHER PERSON WHO CLAIMS INJURY BY OR THROUGH SUCH INJURED
18 PLAINTIFF; AND
19 (B) COMPENSATION FOR NONECONOMIC DAMAGES SUFFERED BY THE INJURED
20 PLAINTIFF OR OTHER PERSON WHO CLAIMS INJURY THROUGH SUCH INJURED PLAIN-
21 TIFF, OR AS A CONSEQUENCE OF INJURY TO SUCH INJURED PLAINTIFF, NOT TO
22 EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS.
23 2. THE DAMAGE AWARD RECOVERABLE FOR A PERSONAL INJURY ACTION SHALL NOT
24 EXCEED THE AMOUNT PERMITTED TO BE AWARDED PURSUANT TO SUBDIVISION ONE OF
25 THIS SECTION REGARDLESS OF THE NUMBER OF DEFENDANTS TO SUCH ACTION. IF A
26 JURY AWARDS AN AMOUNT FOR NONECONOMIC DAMAGES THAT EXCEEDS THE LIMITA-
27 TION UNDER SUBDIVISION ONE OF THIS SECTION, THE COURT SHALL REDUCE THE
28 AMOUNT TO CONFORM TO THE LIMITATION.
29 3. NO OTHER PERSONAL INJURY ACTION MAY BE BROUGHT BY THE PREVAILING
30 PLAINTIFF OR OTHER PERSON WHO CLAIMS INJURY THROUGH SUCH INJURED PLAIN-
31 TIFF, OR AS A CONSEQUENCE OF INJURY TO SUCH INJURED PLAINTIFF, TO
32 RECOVER AMOUNTS FOR THE INJURY OR OCCURRENCE THAT GIVES RISE TO SUCH
33 PERSONAL INJURY ACTION.
34 4. WHERE A DEFENDANT HAS SUCCESSFULLY PLEADED AND PROVED CONTRIBUTORY
35 NEGLIGENCE ON THE PART OF THE PREVAILING PLAINTIFF PURSUANT TO ARTICLE
36 FOURTEEN-A OF THIS CHAPTER, THE DAMAGE AWARD TO THE PREVAILING PLAINTIFF
37 SHALL BE DIMINISHED FROM THE AMOUNTS AWARDED PURSUANT TO SUBDIVISION ONE
38 OF THIS SECTION BY THE PROPORTION WHICH THE CULPABLE CONDUCT ATTRIBUT-
39 ABLE TO THE PREVAILING PLAINTIFF BEARS TO THE CULPABLE CONDUCT WHICH
40 CAUSED THE DAMAGES.
41 5. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PREVENT THE APPLICA-
42 TION OF SECTION FORTY-FIVE HUNDRED FORTY-FIVE OF THIS CHAPTER TO A
43 DAMAGE AWARD FOR A PERSONAL INJURY ACTION MADE PURSUANT TO SUBDIVISION
44 ONE OF THIS SECTION.
45 6. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE JURY SHALL NOT BE
46 INSTRUCTED OF THE LIMITATION ON NONECONOMIC DAMAGES AS SET FORTH IN THIS
47 ARTICLE.
48 S 6. Subparagraph (i) of paragraph 1 of subdivision (d) of section
49 3101 of the civil practice law and rules, as amended by chapter 184 of
50 the laws of 1988, is amended to read as follows:
51 (i) Upon request, each party shall identify each person whom the party
52 expects to call as an expert witness at trial and shall disclose in
53 reasonable detail the subject matter on which each expert is expected to
54 testify, the substance of the facts and opinions on which each expert is
55 expected to testify, the qualifications of each expert witness and a
56 summary of the grounds for each expert's opinion. However, where a party
A. 4381 5
1 for good cause shown retains an expert an insufficient period of time
2 before the commencement of trial to give appropriate notice thereof, the
3 party shall not thereupon be precluded from introducing the expert's
4 testimony at the trial solely on grounds of noncompliance with this
5 paragraph. In that instance, upon motion of any party, made before or at
6 trial, or on its own initiative, the court may make whatever order may
7 be just. [In an action for medical, dental or podiatric malpractice, a
8 party, in responding to a request, may omit the names of medical, dental
9 or podiatric experts but shall be required to disclose all other infor-
10 mation concerning such experts otherwise required by this paragraph.]
11 S 7. Subparagraph (ii) of paragraph 1 of subdivision (d) of section
12 3101 of the civil practice law and rules is REPEALED and a new subpara-
13 graph (ii) is added to read as follows:
14 (II) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE OR OF ARTICLE
15 THIRTY-TWO OF THIS CHAPTER, IN AN ACTION FOR MEDICAL, DENTAL OR PODIA-
16 TRIC MALPRACTICE, AT THE TIMES AND IN THE SEQUENCE DIRECTED BY THE
17 COURT, SUCH TIMES TO BE PRIOR TO THE SERVICE AND FILING OF A NOTE OF
18 ISSUE UNLESS THE COURT DIRECTS OTHERWISE AND PRESERVES THE RIGHT OF
19 EVERY PARTY TO DEPOSE A PERSON WHOSE DISCLOSURE OCCURS SUBSEQUENT TO THE
20 FILING OF A NOTE OF ISSUE, EACH PARTY SHALL DISCLOSE TO THE OTHER
21 PARTIES THE IDENTITY OF ANY PERSON WHO MAY BE USED AT TRIAL TO PROVIDE
22 EXPERT TESTIMONY IN THE CASE AND EACH SUCH DISCLOSURE SHALL BE ACCOMPA-
23 NIED BY A WRITTEN REPORT PREPARED AND SIGNED BY SUCH PERSON. THE REPORT
24 SHALL CONTAIN A COMPLETE STATEMENT OF ALL OPINIONS TO BE EXPRESSED AND
25 THE BASIS AND REASONS THEREFOR; THE DATA OR OTHER INFORMATION CONSIDERED
26 BY SUCH PERSON IN FORMING THE OPINIONS; ANY EXHIBITS TO BE USED AS A
27 SUMMARY OF OR SUPPORT FOR THE OPINIONS; THE QUALIFICATIONS OF THE
28 PERSON, INCLUDING A LIST OF ALL PUBLICATIONS AUTHORED BY THE PERSON
29 DURING THE PRECEDING TEN YEARS; THE COMPENSATION TO BE PAID FOR THE
30 PERSON'S CONSIDERATION OF DATA OR OTHER INFORMATION AND FOR HIS OR HER
31 TESTIMONY; AND A LISTING OF ANY OTHER CASES IN WHICH THE PERSON HAS
32 TESTIFIED AS AN EXPERT AT TRIAL OR BY ORAL DEPOSITION WITHIN THE PRECED-
33 ING FOUR YEARS. EACH PARTY SHALL BE REQUIRED TO PRODUCE EACH PERSON SO
34 IDENTIFIED BY SUCH PARTY AS AN EXPERT WITNESS, FOR EXAMINATION UPON ORAL
35 DEPOSITION UPON RECEIPT OF A NOTICE TO TAKE ORAL DEPOSITION IN ACCORD-
36 ANCE WITH RULE THIRTY-ONE HUNDRED SEVEN OF THIS ARTICLE. UNLESS MANIFEST
37 INJUSTICE WOULD RESULT, THE COURT SHALL REQUIRE THAT THE PARTY NOTICING
38 AN ORAL DEPOSITION OF SUCH AN EXPERT WITNESS PAY SUCH WITNESS A REASON-
39 ABLE FEE FOR TIME SPENT IN ATTENDING SUCH ORAL DEPOSITION. IF ANY PARTY
40 FAILS TO IDENTIFY A PERSON AS AN EXPERT WITNESS IN ACCORDANCE WITH THE
41 PROVISIONS OF THIS CLAUSE, OR IF ANY PARTY FAILS TO MAKE ANY PERSON
42 IDENTIFIED BY THE PARTY AS AN EXPERT WITNESS AVAILABLE FOR ORAL DEPOSI-
43 TION IN ACCORDANCE WITH THE PROVISIONS OF THIS CLAUSE, THAT PARTY SHALL
44 BE PRECLUDED FROM OFFERING SUCH EXPERT'S TESTIMONY AT THE TRIAL OF THE
45 ACTION.
46 S 8. This act shall take effect immediately; except that sections two,
47 three, six and seven of this act shall take effect on the ninetieth day
48 after this act shall have become a law and shall apply to actions
49 commenced and claims filed on or after the effective date of such
50 sections. The provisions of sections four and five of this act shall
51 apply to causes of action and claims accruing on or after the effective
52 date of this act.
