Bill Text: NY A05018 | 2019-2020 | General Assembly | Introduced

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Bill Title: Requires the complaint in an action for medical, dental or podiatric malpractice to be accompanied by an affidavit of merit stating information attested to by an appropriate health care professional which establishes the alleged malpractice; and requires enhanced discovery and disclosure of experts in medical, dental and podiatric malpractice actions.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2020-01-08 - referred to judiciary [A05018 Detail]

Download: New_York-2019-A05018-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          5018
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 6, 2019
                                       ___________
        Introduced by M. of A. ABBATE -- read once and referred to the Committee
          on Judiciary
        AN ACT to amend the civil practice law and rules, in relation to requir-
          ing an affidavit of merit  and expert discovery in medical, dental and
          podiatric malpractice 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    § 3012-a. [Certificate] Affidavit of  merit  in  medical,  dental  and
     5  podiatric  malpractice actions. (a) In any action for medical, dental or
     6  podiatric malpractice, the complaint shall be accompanied by [a  certif-
     7  icate, executed by the attorney for the plaintiff, declaring] an affida-
     8  vit  of  merit executed by a healthcare professional who the plaintiff's
     9  attorney or, the plaintiff if not represented by an attorney, reasonably
    10  believes is knowledgeable in the relevant issues involved in the partic-
    11  ular action to be an expert physician in a medical  malpractice  action,
    12  an expert dentist in a dental malpractice action or an expert podiatrist
    13  in a podiatric malpractice action, stating that[:
    14    (1)  the attorney has reviewed the facts of the case and has consulted
    15  with at least one physician in medical malpractice actions, at least one
    16  dentist in dental malpractice actions or  at  least  one  podiatrist  in
    17  podiatric  malpractice actions who is licensed to practice in this state
    18  or any other state and who the attorney  reasonably  believes  is  know-
    19  ledgeable  in the relevant issues involved in the particular action, and
    20  that the attorney has concluded on the basis of such review and  consul-
    21  tation  that  there  is  a reasonable basis for the commencement of such
    22  action; or
    23    (2) the attorney was unable to obtain  the  consultation  required  by
    24  paragraph  one  of this subdivision because a limitation of time, estab-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09477-01-9
        A. 5018                             2

     1  lished by article two of this chapter, would bar the action and that the
     2  certificate required by paragraph one  of  this  subdivision  could  not
     3  reasonably  be  obtained  before  such time expired. If a certificate is
     4  executed  pursuant to this subdivision, the certificate required by this
     5  section  shall  be  filed  within  ninety  days  after  service  of  the
     6  complaint; or
     7    (3)  the  attorney  was  unable to obtain the consultation required by
     8  paragraph one of this subdivision because the attorney  had  made  three
     9  separate good faith attempts with three separate physicians, dentists or
    10  podiatrists,  in accordance with the provisions of paragraph one of this
    11  subdivision to obtain such consultation  and  none  of  those  contacted
    12  would  agree to such a consultation] the physician in a medical malprac-
    13  tice action, or the dentist in  a  dental  malpractice  action,  or  the
    14  podiatrist  in a podiatric malpractice action has reviewed the complaint
    15  in the malpractice action  and  all  medical  records  supplied  by  the
    16  plaintiff's  attorney,  or  plaintiff if not represented by an attorney,
    17  and states each of the following with  individual  particularization  to
    18  the specifically named defendant or defendants:
    19    (1) The applicable standard of practice or care concerning the allega-
    20  tions contained in the complaint.
    21    (2) The applicable standard of practice or care breached.
    22    (3)  The  actions  that  should have been taken or omitted in order to
    23  have complied with the applicable standard of care.
    24    (4) The manner in which the breach of the standard of practice or care
    25  was the proximate cause of the plaintiff's injury.
    26    (b) [Where a certificate is  required  pursuant  to  this  section,  a
    27  single certificate shall be filed for each action, even if more than one
    28  defendant  has  been  named  in  the complaint or is subsequently named]
    29  Where an affidavit of merit is required pursuant  to  this  section,  an
    30  individual  affidavit  shall  be filed for each named defendant who is a
    31  physician, dentist or podiatrist named in the complaint.
    32    (c) Where the attorney intends to rely solely on the doctrine of  "res
    33  ipsa  loquitur", this section shall be inapplicable.  In such cases, the
    34  complaint shall be accompanied by [a certificate] an affidavit, executed
    35  by the attorney, declaring that the attorney is solely relying  on  such
    36  doctrine and, for that reason, is not filing [a certificate] the affida-
    37  vit of merit required by this section.
    38    (d)  [If a request by the plaintiff for the records of the plaintiff's
    39  medical or dental treatment by the defendants has  been  made  and  such
    40  records  have  not been produced, the plaintiff shall not be required to
    41  serve the certificate required by this section until ninety  days  after
    42  such  records  have been produced] The plaintiff may, in lieu of serving
    43  the affidavit of merit required by this section, provide  the  defendant
    44  or defendants with the information required by paragraph one of subdivi-
    45  sion  (d)  of  section thirty-one hundred one of this chapter within the
    46  period of time prescribed by this section, provided that the  disclosure
    47  be  executed  by  the  physician in a medical malpractice action, or the
    48  dentist in a dental malpractice action, or the podiatrist in a podiatric
    49  malpractice action who has reviewed the  complaint  in  the  malpractice
    50  action and all medical records supplied by the plaintiff's attorney.
    51    (e)  [For  purposes  of this section, and subject to the provisions of
    52  section thirty-one hundred one of this chapter, an attorney who  submits
    53  a  certificate as required by paragraph one or two of subdivision (a) of
    54  this section and the physician, dentist  or  podiatrist  with  whom  the
    55  attorney consulted shall not be required to disclose the identity of the
    56  physician,  dentist  or  podiatrist  consulted  and the contents of such
        A. 5018                             3

     1  consultation; provided, however, that when the attorney  makes  a  claim
     2  under  paragraph  three  of  subdivision (a) of this section that he was
     3  unable to obtain the required consultation with the  physician,  dentist
     4  or podiatrist, the court may, upon the request of a defendant made prior
     5  to compliance by the plaintiff with the provisions of section thirty-one
     6  hundred  of  this  chapter, require the attorney to divulge to the court
     7  the names of physicians, dentists or podiatrists refusing such consulta-
     8  tion] The plaintiff's attorney or, the plaintiff if not  represented  by
     9  an  attorney,  may  with  good  cause shown, file a motion to extend the
    10  period of time to file the required affidavit  of  merit.    The  motion
    11  shall  be filed together with the complaint. The court may grant reason-
    12  able time to file the affidavit of merit, not  to  exceed  ninety  days,
    13  except  the  time may be extended beyond ninety days if the court deter-
    14  mines that a defendant or non-party has failed to cooperate with  access
    15  to  medical  or  dental  records necessary for the affidavit of merit or
    16  that other circumstances warrant extension of time.
    17    (f) [The provisions of this section  shall  not  be  applicable  to  a
    18  plaintiff who is not represented by an attorney.
    19    (g)  The plaintiff may, in lieu of serving the certificate required by
    20  this section, provide the defendant or defendants with  the  information
    21  required  by  paragraph  one  of  subdivision  (d) of section thirty-one
    22  hundred one of this chapter within the period of time prescribed by this
    23  section] Any complaint alleging medical, dental, or  podiatric  malprac-
    24  tice  that  is  not  accompanied by an affidavit of merit as required by
    25  this section shall be deemed defective as a  matter  of  law  and,  upon
    26  motion  by  the defendant, be dismissed on the merits by the court. Such
    27  dismissal shall be with prejudice.
    28    § 2. Subdivision (a) of section 3101 of the  civil  practice  law  and
    29  rules is amended by adding a new paragraph 5 to read as follows:
    30    (5) notwithstanding any provision of subparagraph (i) of paragraph one
    31  of  subdivision  (d)  of  this section to the contrary, in an action for
    32  medical, dental or podiatric malpractice, each  party  shall  serve  the
    33  disclosure  described  in  such subparagraph within sixty days preceding
    34  the filing required by rule thirty-four hundred  two  of  this  chapter.
    35  Further,  at  any time after joinder of issue, any party may, by written
    36  notice made to and served upon all other  parties  and  filed  with  the
    37  court;  conduct  an  examination upon oral deposition, of any person who
    38  has been disclosed as an expert witness by any other party.  Each  party
    39  shall  be  required to produce his or her expert witness for examination
    40  upon oral deposition upon receipt of a notice to take oral deposition in
    41  accordance with rule thirty-one  hundred  seven  of  this  chapter  and,
    42  unless  otherwise  ordered  by the court, all expert witness depositions
    43  shall be taken before the filing required by  rule  thirty-four  hundred
    44  two of this chapter. If any party, having received such notice, fails to
    45  make  that  party's  expert  witness available for oral deposition, that
    46  party shall be precluded from offering expert testimony at the trial  of
    47  the  action.  For purposes of rule thirty-one hundred ten and rule thir-
    48  ty-one hundred  seventeen,  an  expert  witness,  as  provided  in  this
    49  section,  shall be considered a party. Each party seeking the deposition
    50  of an expert witness shall pay the expert a reasonable fee for the  time
    51  spent at the deposition.
    52    § 3. Paragraph 1 of subdivision (d) of section 3101 of the civil prac-
    53  tice  law  and  rules,  as  amended  by chapter 184 of the laws of 1988,
    54  subparagraph (ii) as amended by chapter 165 of  the  laws  of  1991,  is
    55  amended to read as follows:
        A. 5018                             4
     1    1.  Experts.  (i)  Upon request, each party shall identify each person
     2  whom the party expects to call as an expert witness at trial  and  shall
     3  disclose in reasonable detail the subject matter on which each expert is
     4  expected  to  testify,  the substance of the facts and opinions on which
     5  each  expert  is  expected to testify, the qualifications of each expert
     6  witness and a summary of the grounds for each expert's opinion. However,
     7  where a party for good cause shown retains  an  expert  an  insufficient
     8  period  of  time  before  the  commencement of trial to give appropriate
     9  notice thereof, the party shall not thereupon be precluded  from  intro-
    10  ducing  the expert's testimony at the trial solely on grounds of noncom-
    11  pliance with this paragraph. In that instance, upon motion of any party,
    12  made before or at trial, or on its own initiative, the  court  may  make
    13  whatever  order may be just. [In an action for medical, dental or podia-
    14  tric malpractice, a party, in responding to  a  request,  may  omit  the
    15  names  of  medical, dental or podiatric experts but shall be required to
    16  disclose  all  other  information  concerning  such  experts   otherwise
    17  required by this paragraph.
    18    (ii)  In  an  action for medical, dental or podiatric malpractice, any
    19  party may, by written offer made to and served upon  all  other  parties
    20  and  filed  with  the  court, offer to disclose the name of, and to make
    21  available for examination upon oral deposition,  any  person  the  party
    22  making  the  offer expects to call as an expert witness at trial. Within
    23  twenty days of service of the offer, a party shall accept or reject  the
    24  offer  by  serving  a  written  reply upon all parties and filing a copy
    25  thereof with the court. Failure to serve a reply within twenty  days  of
    26  service  of  the  offer shall be deemed a rejection of the offer. If all
    27  parties accept the offer, each party shall be required to produce his or
    28  her expert witness for examination upon oral deposition upon receipt  of
    29  a  notice  to  take  oral  deposition in accordance with rule thirty-one
    30  hundred seven of this chapter. If any party, having made or accepted the
    31  offer, fails to make that party's expert available for oral  deposition,
    32  that  party  shall  be  precluded  from offering expert testimony at the
    33  trial of the action.
    34    (iii)] (ii) Further disclosure concerning the  expected  testimony  of
    35  any  expert,  except as expressly provided in paragraph five of subdivi-
    36  sion (a) of this section, may be obtained only by  court  order  upon  a
    37  showing of special circumstances and subject to restrictions as to scope
    38  and provisions concerning fees and expenses as the court may deem appro-
    39  priate. However, a party, without court order, may take the testimony of
    40  a  person  authorized to practice medicine, dentistry or podiatry who is
    41  the party's treating or retained expert, as described in paragraph three
    42  of subdivision (a) of this section, in which event any other party shall
    43  be entitled to the full  disclosure  authorized  by  this  article  with
    44  respect to that expert without court order.
    45    §  4.  This  act shall take effect on the ninetieth day after it shall
    46  have become a law; provided, however, that section one of this act shall
    47  take effect on the one hundred eightieth day after this act  shall  have
    48  become a law.