Bill Text: NY S01024 | 2023-2024 | General Assembly | Introduced

---

Bill Title: Relates to economic loss and damages for health care costs for medical care, dental care, custodial care, or rehabilitation services.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-01-03 - REFERRED TO JUDICIARY [S01024 Detail]

Download: New_York-2023-S01024-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________

                                          1024

                               2023-2024 Regular Sessions

                    IN SENATE

                                     January 9, 2023
                                       ___________

        Introduced  by  Sen.  COONEY -- read twice and ordered printed, and when
          printed to be committed to the Committee on Judiciary

        AN ACT to amend the  civil  practice  law  and  rules,  in  relation  to
          "economic  loss"  and  damages  for  health  care costs in actions for
          medical, dental or podiatric malpractice

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1. Section 1600 of the civil practice law and rules, as added
     2  by chapter 682 of the laws of 1986, is amended to read as follows:
     3    § 1600. Definitions. 1. As used in this article the term "non-economic
     4  loss" includes but is not limited to pain and suffering, mental anguish,
     5  loss of consortium or other damages for non-economic loss.
     6    2. As used in this article, the term "economic loss" includes  but  is
     7  not  limited  to  the cost of medical care, dental care, custodial care,
     8  rehabilitation services, loss of earnings, or other similar damages  for
     9  economic loss.
    10    §  2.  Subdivision  1  of  section  1601 of the civil practice law and
    11  rules, as amended by chapter 635 of the laws of 1996, is amended to read
    12  as follows:
    13    1. Notwithstanding any other provision of law, when a verdict or deci-
    14  sion in an action or claim for personal injury is determined in favor of
    15  a claimant in an action involving two or more tortfeasors jointly liable
    16  or in a claim against the state and the  liability  of  a  defendant  is
    17  found to be fifty percent or less of the total liability assigned to all
    18  persons  liable,  the  liability  of  such defendant to the claimant for
    19  non-economic loss and economic loss shall not  exceed  that  defendant's
    20  equitable  share  determined in accordance with the relative culpability
    21  of each person causing or contributing to the total liability for non-e-
    22  conomic loss and economic loss;  provided,  however  that  the  culpable
    23  conduct  of any person not a party to the action shall not be considered
    24  in determining any equitable share herein if the  claimant  proves  that

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02703-01-3
        S. 1024                             2

     1  with due diligence he or she was unable to obtain jurisdiction over such
     2  person  in  said  action (or in a claim against the state, in a court of
     3  this state); and further provided  that  the  culpable  conduct  of  any
     4  person shall not be considered in determining any equitable share herein
     5  to  the  extent  that  action  against such person is barred because the
     6  claimant has not sustained a "grave injury" as defined in section eleven
     7  of the workers' compensation law.
     8    § 3. Section 3012-a of the civil practice law and rules, as amended by
     9  chapter 507 of the laws of 1987, is amended to read as follows:
    10    § 3012-a. [Certificate] Affidavit of  merit  in  medical,  dental  and
    11  podiatric  malpractice actions. (a) In any action for medical, dental or
    12  podiatric malpractice, the complaint shall be accompanied by [a  certif-
    13  icate, executed by the attorney for the plaintiff, declaring] an affida-
    14  vit  of  merit executed by a healthcare professional who the plaintiff's
    15  attorney or, the plaintiff if not represented by an attorney, reasonably
    16  believes is knowledgeable in the relevant issues involved in the partic-
    17  ular action to be an expert physician in a medical  malpractice  action,
    18  an expert dentist in a dental malpractice action or an expert podiatrist
    19  in a podiatric malpractice action, stating that[:
    20    (1)  the attorney has reviewed the facts of the case and has consulted
    21  with at least one physician in medical malpractice actions, at least one
    22  dentist in dental malpractice actions or  at  least  one  podiatrist  in
    23  podiatric  malpractice actions who is licensed to practice in this state
    24  or any other state and who the attorney  reasonably  believes  is  know-
    25  ledgeable  in the relevant issues involved in the particular action, and
    26  that the attorney has concluded on the basis of such review and  consul-
    27  tation  that  there  is  a reasonable basis for the commencement of such
    28  action; or
    29    (2) the attorney was unable to obtain  the  consultation  required  by
    30  paragraph  one  of this subdivision because a limitation of time, estab-
    31  lished by article two of this chapter, would bar the action and that the
    32  certificate required by paragraph one  of  this  subdivision  could  not
    33  reasonably  be  obtained  before  such time expired. If a certificate is
    34  executed pursuant to this subdivision, the certificate required by  this
    35  section  shall  be  filed  within  ninety  days  after  service  of  the
    36  complaint; or
    37    (3) the attorney was unable to obtain  the  consultation  required  by
    38  paragraph  one  of  this subdivision because the attorney had made three
    39  separate good faith attempts with three separate physicians, dentists or
    40  podiatrists, in accordance with the provisions of paragraph one of  this
    41  subdivision  to  obtain  such  consultation  and none of those contacted
    42  would agree to such a consultation] the physician in a medical  malprac-
    43  tice  action,  or  the  dentist  in  a dental malpractice action, or the
    44  podiatrist in a podiatric malpractice action has reviewed the  complaint
    45  in  the  malpractice  action  and  all  medical  records supplied by the
    46  plaintiff's attorney, or plaintiff if not represented  by  an  attorney,
    47  and  states  each  of the following with individual particularization to
    48  the specifically named defendant or defendants:
    49    (1) The applicable standard of practice or care concerning the allega-
    50  tions contained in the complaint.
    51    (2) The applicable standard of practice or care breached.
    52    (3) The actions that should have been taken or  omitted  in  order  to
    53  have complied with the applicable standard of care.
    54    (4) The manner in which the breach of the standard of practice or care
    55  was the proximate cause of the plaintiff's injury.
        S. 1024                             3

     1    (b)  [Where  a  certificate  is  required  pursuant to this section, a
     2  single certificate shall be filed for each action, even if more than one
     3  defendant has been named in the  complaint  or  is  subsequently  named]
     4  Where  an  affidavit  of  merit is required pursuant to this section, an
     5  individual  affidavit  shall  be filed for each named defendant who is a
     6  physician, dentist or podiatrist named in the complaint.
     7    (c) Where the attorney intends to rely solely on the doctrine of  "res
     8  ipsa  loquitur", this section shall be inapplicable.  In such cases, the
     9  complaint shall be accompanied by [a certificate] an affidavit, executed
    10  by the attorney, declaring that the attorney is solely relying  on  such
    11  doctrine and, for that reason, is not filing [a certificate] the affida-
    12  vit of merit required by this section.
    13    (d)  [If a request by the plaintiff for the records of the plaintiff's
    14  medical or dental treatment by the defendants has  been  made  and  such
    15  records  have  not been produced, the plaintiff shall not be required to
    16  serve the certificate required by this section until ninety  days  after
    17  such  records  have been produced] The plaintiff may, in lieu of serving
    18  the affidavit of merit required by this section, provide  the  defendant
    19  or defendants with the information required by paragraph one of subdivi-
    20  sion  (d)  of  section thirty-one hundred one of this chapter within the
    21  period of time prescribed by this section, provided that the  disclosure
    22  be  executed  by  the  physician in a medical malpractice action, or the
    23  dentist in a dental malpractice action, or the podiatrist in a podiatric
    24  malpractice action who has reviewed the  complaint  in  the  malpractice
    25  action and all medical records supplied by the plaintiff's attorney.
    26    (e)  [For  purposes  of this section, and subject to the provisions of
    27  section thirty-one hundred one of this chapter, an attorney who  submits
    28  a  certificate as required by paragraph one or two of subdivision (a) of
    29  this section and the physician, dentist  or  podiatrist  with  whom  the
    30  attorney consulted shall not be required to disclose the identity of the
    31  physician,  dentist  or  podiatrist  consulted  and the contents of such
    32  consultation; provided, however, that when the attorney  makes  a  claim
    33  under  paragraph  three  of  subdivision (a) of this section that he was
    34  unable to obtain the required consultation with the  physician,  dentist
    35  or podiatrist, the court may, upon the request of a defendant made prior
    36  to compliance by the plaintiff with the provisions of section thirty-one
    37  hundred  of  this  chapter, require the attorney to divulge to the court
    38  the names of physicians, dentists or podiatrists refusing such consulta-
    39  tion] The plaintiff's attorney or, the plaintiff if not  represented  by
    40  an  attorney,  may  with  good  cause shown, file a motion to extend the
    41  period of time to file the required affidavit of merit. The motion shall
    42  be filed together with the complaint. The  court  may  grant  reasonable
    43  time  to  file the affidavit of merit, not to exceed ninety days, except
    44  the time may be extended beyond ninety days if the court determines that
    45  a defendant or non-party has failed to cooperate with access to  medical
    46  or  dental  records  necessary  for the affidavit of merit or that other
    47  circumstances warrant extension of time.
    48    (f) [The provisions of this section  shall  not  be  applicable  to  a
    49  plaintiff 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] Any complaint alleging medical, dental, or  podiatric  malprac-
    55  tice  that  is  not  accompanied by an affidavit of merit as required by
    56  this section shall be deemed defective as a  matter  of  law  and,  upon
        S. 1024                             4

     1  motion  by  the defendant, be dismissed on the merits by the court. Such
     2  dismissal shall be with prejudice.
     3    §  4.  Paragraphs  3  and  4 of subdivision (a) of section 3101 of the
     4  civil practice law and rules, as amended by chapter 98 of  the  laws  of
     5  1993, are amended and a new paragraph 5 is added to read as follows:
     6    (3)  a person about to depart from the state, or without the state, or
     7  residing at a greater distance from the place of trial than one  hundred
     8  miles,  or  so  sick or infirm as to afford reasonable grounds of belief
     9  that he or she will not be able to attend the trial, or a person author-
    10  ized to practice  medicine,  dentistry  or  podiatry  who  has  provided
    11  medical,  dental  or  podiatric care or diagnosis to the party demanding
    12  disclosure, or who has been retained by such party as an expert witness;
    13  [and]
    14    (4) any other person, upon notice stating the circumstances or reasons
    15  such disclosure is sought or required[.]; and
    16    (5) notwithstanding any provision of subparagraph (i) of paragraph one
    17  of subdivision (d) of this section to the contrary,  in  an  action  for
    18  medical,  dental  or  podiatric  malpractice, each party shall serve the
    19  disclosure described in such subparagraph within  sixty  days  preceding
    20  the  filing  required  by  rule thirty-four hundred two of this chapter.
    21  Further, at any time after joinder of issue, any party may,  by  written
    22  notice  made  to  and  served  upon all other parties and filed with the
    23  court; conduct an examination upon oral deposition of any person who has
    24  been disclosed as an expert witness by any other party. Each party shall
    25  be required to produce his or her expert witness  for  examination  upon
    26  oral  deposition  upon  receipt  of  a notice to take oral deposition in
    27  accordance with rule thirty-one  hundred  seven  of  this  article  and,
    28  unless  otherwise  ordered  by the court, all expert witness depositions
    29  shall be taken before the filing required by  rule  thirty-four  hundred
    30  two of this chapter. If any party, having received such notice, fails to
    31  make  that  party's  expert  witness available for oral deposition, that
    32  party shall be precluded from offering expert testimony at the trial  of
    33  the  action.  For purposes of rule thirty-one hundred ten and rule thir-
    34  ty-one hundred seventeen of this article, an expert witness, as provided
    35  in this section, shall be considered a party.   Each party  seeking  the
    36  deposition  of  an  expert witness shall pay the expert a reasonable fee
    37  for the time spent at the deposition.
    38    § 5. Paragraph 1 of subdivision (d) of section 3101 of the civil prac-
    39  tice law and rules, as amended by chapter  184  of  the  laws  of  1988,
    40  subparagraph  (ii)  as  amended  by  chapter 165 of the laws of 1991, is
    41  amended to read as follows:
    42    1. Experts. (i) Upon request, each party shall  identify  each  person
    43  whom  the  party expects to call as an expert witness at trial and shall
    44  disclose in reasonable detail the subject matter on which each expert is
    45  expected to testify, the substance of the facts and  opinions  on  which
    46  each  expert  is  expected to testify, the qualifications of each expert
    47  witness and a summary of the grounds for each expert's opinion. However,
    48  where a party for good cause shown retains  an  expert  an  insufficient
    49  period  of  time  before  the  commencement of trial to give appropriate
    50  notice thereof, the party shall not thereupon be precluded  from  intro-
    51  ducing  the expert's testimony at the trial solely on grounds of noncom-
    52  pliance with this paragraph. In that instance, upon motion of any party,
    53  made before or at trial, or on its own initiative, the  court  may  make
    54  whatever  order may be just. [In an action for medical, dental or podia-
    55  tric malpractice, a party, in responding to  a  request,  may  omit  the
    56  names  of  medical, dental or podiatric experts but shall be required to
        S. 1024                             5

     1  disclose  all  other  information  concerning  such  experts   otherwise
     2  required by this paragraph.
     3    (ii)  In  an  action for medical, dental or podiatric malpractice, any
     4  party may, by written offer made to and served upon  all  other  parties
     5  and  filed  with  the  court, offer to disclose the name of, and to make
     6  available for examination upon oral deposition,  any  person  the  party
     7  making  the  offer expects to call as an expert witness at trial. Within
     8  twenty days of service of the offer, a party shall accept or reject  the
     9  offer  by  serving  a  written  reply upon all parties and filing a copy
    10  thereof with the court. Failure to serve a reply within twenty  days  of
    11  service  of  the  offer shall be deemed a rejection of the offer. If all
    12  parties accept the offer, each party shall be required to produce his or
    13  her expert witness for examination upon oral deposition upon receipt  of
    14  a  notice  to  take  oral  deposition in accordance with rule thirty-one
    15  hundred seven of this chapter. If any party, having made or accepted the
    16  offer, fails to make that party's expert available for oral  deposition,
    17  that  party  shall  be  precluded  from offering expert testimony at the
    18  trial of the action.
    19    (iii)] (ii) Further disclosure concerning the  expected  testimony  of
    20  any  expert,  except as expressly provided in paragraph five of subdivi-
    21  sion (a) of this section, may be obtained only by  court  order  upon  a
    22  showing of special circumstances and subject to restrictions as to scope
    23  and provisions concerning fees and expenses as the court may deem appro-
    24  priate. However, a party, without court order, may take the testimony of
    25  a  person  authorized to practice medicine, dentistry or podiatry who is
    26  the party's treating or retained expert, as described in paragraph three
    27  of subdivision (a) of this section, in which event any other party shall
    28  be entitled to the full  disclosure  authorized  by  this  article  with
    29  respect to that expert without court order.
    30    §  6.  The  civil  practice  law  and rules is amended by adding a new
    31  section 4546-a to read as follows:
    32    § 4546-a. Damages for health care costs in actions for medical, dental
    33  or podiatric malpractice. 1. Definitions. "Health care costs" shall mean
    34  the costs for medical care, dental care, custodial  care,  or  rehabili-
    35  tation services.
    36    2.  In  any  action for medical, dental, or podiatric malpractice, the
    37  amount of health care costs shall be calculated:  (a)  with  respect  to
    38  services  provided  in  private  physician practices on the basis of one
    39  hundred percent of the usual and customary  rates,  as  defined  by  the
    40  commissioner  of  health in regulation; or (b) with respect to all other
    41  services, on the basis of Medicaid rates of reimbursement or,  where  no
    42  such  rates  are  available, as defined by the commissioner of health in
    43  regulation.
    44    § 7. This act shall take effect on the one hundred eightieth day after
    45  it shall  have  become  a  law  and  shall  apply  to  all  actions  and
    46  proceedings  commenced  on  or  after such date; provided, however, that
    47  sections four and five of this act shall take effect  on  the  ninetieth
    48  day after it shall have become a law.