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A03335 Summary:

BILL NOA03335
 
SAME ASNo same as
 
SPONSORSchimminger (MS)
 
COSPNSRMagee, Kolb
 
MLTSPNSRBarclay, Crouch, Galef, Hawley, Palmesano
 
Amd SS3012-a, 1600, 1601 & 3101, add Art 50-C SS5051 & 5052, rpld S3101 sub (d) 1 sub (ii), CPLR
 
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.
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A03335 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A3335
 
SPONSOR: Schimminger (MS)
  TITLE OF BILL: An act to amend the civil practice law and rules, in relation to enacting 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   PURPOSE: The purpose of this legislation is to reform the Civil Prac- tice Law and Rules in regards to medical liability.   SUMMARY OF PROVISIONS: § 1 -Title. "Medical Liability Reform Act." § 2 - Adds the requirement of an affidavit from a physician concluding that there is a reasonable basis for the commencement of an action, with such affidavit to accompany the certificate required by this section, with caveats. § 3 - Repeals the definition of "non-economic loss" and replaces it with definitions for "noneconomic damages" and "actual economic damages." § 4 - Amends § 1601 of the CPLR to make equitable share regardless of whether a defendant was less that fifty percent liable, as determined in accordance with the relative culpability of each defendant. § 5 - Adds Article 50-C, limitation on non-economic damages to the CPLR. § 6 - Amends § 3101 of the CPLR removes the exception that allows the omission of the names of medical, dental or podiatric experts from production materials concerning experts testifying at trial. § 7 - Replaces clause (ii) of paragraph I of subdivision (d) of § 3101 of the CPLR to require that, in an action for medical, dental or podia- tric malpractice, the report shall contain a complete statement of all opinions to be expressed, the basis and reasons therefor; the data or other information considered by such person in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the person, including a list of all publications authored by the person during the preceding ten years; the compensation to be paid for the person's consideration of data or other information and for his or her testimony; and a listing of any other cases in which the person has testified as an expert at trial or by oral deposition within the preceding four years. Additionally, this bill requires a party to produce such expert for an EBT, in accordance with rule 3107 of the CPLR. Unless manifest injustice would result, the court shall require that the party noticing an oral deposition of such an expert witness pay such witness a reasonable fee for time spent in attending such oral deposition. Violation of these provisions shall preclude a party from offering such expert's testimony at the trial of the action. § 8 - Effective date.   EXISTING LAW: Amends § 3012-a, § 1600, § 1601 of and adds article 50-C to the CPLR.   JUSTIFICATION: The cost of medical malpractice liability insurance coverage in the state of New York have increased steadily for several years, increasing between 55-80% between 2003 and 2008 and an additional 5% in July 2010. Such unsustainable cost increases not only threatens access to care for patients, it also has driven up the cost of health care for the public. Notably, former Lieutenant Governor Richard Ravitch highlighted in a September 2010 report the need for medical liability reform as one necessary component to reduce New York's extraordinary Medicaid cost burden. Several recent studies have detailed the billions of dollars in health care costs that are unnecessarily spent each year due to the practice of "defensive medicine", such as unnecessary MRIs, CT scans and specialty referrals. These enormous costs are driven by an unpredictable medical liability adjudication system that numerous studies have concluded results in cases where awards are made despite the absence of any negligence what- soever. While an overwhelming majority of medical liability cases brought result in no payment, even the costs of defending these cases are extensive and significantly add to the astronomical cost of medical liability insurance. This bill makes medical malpractice liability reform in several impor- tant ways. The bill provides a true mechanism for removing frivolous claims from the dockets of New York's court rooms. Fewer non-meritorious claims will be advanced in the state, by adding the requirement of an affidavit of merit, signed by a physician, and providing a judge the tools to remove a malpractice claim for failure to comply with the provisions of this amended section. To bring down the amount of judgments in medical malpractice claims, the bill necessarily establishes statutory language for "noneconomic, damages" and "actual economic damages" in order to facilitate the $250,000 cap on noneconomic damages for which this bill provides. There are 30 states that have enacted some form of a cap on non-economic awards in medical liability actions, including California and Texas. The effect in premium has been significant. California physicians pay far less than what New York physicians pay for liability premiums, in Texas, physicians have seen significant reductions in their liability insurance costs since the enactment of a cap in their state in 2003, as well as a significant increase in physician license applications. Additionally, the bill links a defendant's monetary liability to their equitable share in accordance with the relative culpability. This bill expands the scope of production in regards to expert witnesses and their testimony, including identity, which a party must disclose upon request by its opposition. This bill is necessary to facilitate meaningful reform of medical malpractice liability.   LEGISLATIVE HISTORY: 2011-2012: A.4381/S/3187; 2009-2010: A.6184/S.6799; 2007-2008: A.3139/5.2144; 2005- 2006: A.5674/S.3035 2003-2004: A.9599/S.469-A.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect immediately, except that sections 2, 3, 6 and 7 of this act shall take effect 90 days after this act shall have become a law and shall be applicable to actions commenced and claims filed on and after such date. Sections 4 and 5 of this act shall be applicable to causes of action and claims on and after this effective date.
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A03335 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3335
 
                               2013-2014 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 24, 2013
                                       ___________
 
        Introduced by M. of A. SCHIMMINGER, MAGEE, KOLB -- Multi-Sponsored by --
          M.  of  A.  BARCLAY, CROUCH, GALEF, HAWLEY, PALMESANO -- 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    § 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    §  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
    20    (2)  the  attorney was unable to obtain the consultation and affidavit
    21  required by paragraph one of this subdivision because  a  limitation  of
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06769-01-3

        A. 3335                             2
 
     1  time,  established  by article two of this chapter, would bar the action
     2  and that the certificate required by paragraph one of  this  subdivision
     3  could  not reasonably be obtained before such time expired. If a certif-
     4  icate is executed pursuant to this subdivision, the certificate required

     5  by  this  section shall be filed within ninety days after service of the
     6  complaint; or
     7    (3) the attorney was unable to obtain the consultation  and  affidavit
     8  required  by  paragraph one of this subdivision because the attorney had
     9  made three separate good faith attempts with three separate  physicians,
    10  dentists  or podiatrists, in accordance with the provisions of paragraph
    11  one of this subdivision to obtain such consultation and  none  of  those
    12  contacted would agree to such a consultation.
    13    (b) Where a certificate is required pursuant to this section, a single
    14  certificate  shall  be  filed  for  each  action,  even if more than one
    15  defendant has been named in the complaint or is subsequently named.
    16    (c) Where the attorney intends to rely solely on the doctrine of  "res
    17  ipsa  loquitur", this section shall be inapplicable.  In such cases, the

    18  complaint shall be accompanied by a certificate, executed by the  attor-
    19  ney, declaring that the attorney is solely relying on such doctrine and,
    20  for that reason, is not filing a certificate required by this section.
    21    (d)  If  a request by the plaintiff for the records of the plaintiff's
    22  medical or dental treatment by the defendants has  been  made  and  such
    23  records  have  not been produced, the plaintiff shall not be required to
    24  serve the certificate required by this section until ninety  days  after
    25  such records have been produced.
    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] When an attorney makes a
    33  claim under paragraph three of subdivision (a) of this section  that  he
    34  or she was unable to obtain the required consultation and affidavit with
    35  the physician, dentist or podiatrist, the court may, upon the request of
    36  a  defendant  made  prior  to  compliance  by  the  plaintiff  with  the
    37  provisions of [section thirty-one hundred] article  thirty-one  of  this
    38  chapter,  require  the  attorney  to  divulge  to the court the names of
    39  physicians, dentists or podiatrists refusing such consultation.
    40    (f) The provisions of this section shall not be applicable to a plain-

    41  tiff who is not represented by an attorney.
    42    (g) The plaintiff may, in lieu of serving the certificate and  affida-
    43  vit  required  by this section, provide the defendant or defendants with
    44  the information required by paragraph one of subdivision (d) of  section
    45  thirty-one  hundred  one  of  this  chapter  within  the  period of time
    46  prescribed by this section.
    47    (h) Where a certificate and affidavit is  required  pursuant  to  this
    48  section, the failure to timely file such certificate and affidavit shall
    49  require  that  the  action  be  deemed  a dismissal of the complaint for
    50  neglect to file the action for the purposes of section two hundred  five
    51  of this chapter.
    52    §  3.  Section  1600  of the civil practice law and rules, as added by

    53  chapter 682 of the laws of 1986, is amended to read as follows:
    54    § 1600. Definitions. As used in this article [the  term  "non-economic
    55  loss" includes but is not limited to pain and suffering, mental anguish,
    56  loss of consortium or other damages for non-economic loss]:

        A. 3335                             3
 
     1    1. "Noneconomic damages" means nonpecuniary damages arising from pain,
     2  suffering,  inconvenience,  physical impairment or disfigurement, mental
     3  anguish, emotional distress, loss of society and companionship, loss  of
     4  consortium, injury to reputation, humiliation and all other nonpecuniary
     5  damages.
     6    2.  "Actual  economic  damages" means objectively verifiable pecuniary

     7  damages arising from medical expenses and medical care, loss of earnings
     8  and earning capacity, burial costs, loss of use  of  property,  loss  of
     9  guidance, costs of repair or replacement of property, costs of obtaining
    10  substitute  domestic  services,  loss of employment, loss of business or
    11  employment opportunities, rehabilitation services,  custodial  care  and
    12  all other pecuniary damages.
    13    §  4.  Section  1601  of the civil practice law and rules, as added by
    14  chapter 682 of the laws of 1986 and subdivision 1 as amended by  chapter
    15  635 of the laws of 1996, is amended to read as follows:
    16    §  1601.  Limited  liability  of persons jointly liable.  1.  Notwith-
    17  standing any other provision of law, when a verdict or  decision  in  an

    18  action or claim for personal injury is determined in favor of a claimant
    19  in  an  action  involving two or more tortfeasors jointly liable or in a
    20  claim against the state [and the liability of a defendant is found to be
    21  fifty percent or less of the total liability  assigned  to  all  persons
    22  liable], the liability of [such] a defendant to the claimant for [non-e-
    23  conomic  loss]  the  claimant's  actual economic damages and noneconomic
    24  damages shall not exceed that defendant's equitable share determined  in
    25  accordance  with  the  relative  culpability  of  each person causing or
    26  contributing to the total liability for [non-economic loss]  the  claim-
    27  ant's actual economic damages and noneconomic damages; provided, however

    28  that  the culpable conduct of any person not a party to the action shall
    29  not be considered in determining  any  equitable  share  herein  if  the
    30  claimant  proves  that with due diligence he or she was unable to obtain
    31  jurisdiction over such person in said action (or in a claim against  the
    32  state, in a court of this state); and further provided that the culpable
    33  conduct of any person shall not be considered in determining any equita-
    34  ble share herein to the extent that action against such person is barred
    35  because  the  claimant  has not sustained a "grave injury" as defined in
    36  section eleven of the workers' compensation law.
    37    2. Nothing in this section shall be construed to affect or impair  any
    38  right  of  a  tortfeasor under section 15-108 of the general obligations
    39  law.
    40    § 5. The civil practice law and rules is amended by adding a new arti-

    41  cle 50-C to read as follows:
    42                                 ARTICLE 50-C
    43                          LIMITATION ON NONECONOMIC
    44                                   DAMAGES
    45  Section 5051. Definitions.
    46          5052. Damage awards.
    47    § 5051. Definitions. As used in this article:
    48    1. "Noneconomic damages" means nonpecuniary damages arising from pain,
    49  suffering, inconvenience, physical impairment or  disfigurement,  mental
    50  anguish,  emotional distress, loss of society and companionship, loss of
    51  consortium, injury to reputation, humiliation and all other nonpecuniary
    52  damages.
    53    2. "Actual economic damages" means  objectively  verifiable  pecuniary

    54  damages arising from medical expenses and medical care, loss of earnings
    55  and  earning  capacity,  burial  costs, loss of use of property, loss of
    56  guidance, costs of repair or replacement of property, costs of obtaining

        A. 3335                             4
 
     1  substitute domestic services, loss of employment, loss  of  business  or
     2  employment  opportunities,  rehabilitation  services, custodial care and
     3  all other pecuniary damages.
     4    3.  "Personal  injury  action"  means  any action, including but in no
     5  manner limited to medical, dental  and  podiatric  malpractice  actions,
     6  whether  in  tort,  contract  or otherwise, in which the plaintiff seeks
     7  damages for injury to the person or wrongful death.

     8    4. "Compensation" means monetary awards.
     9    § 5052. Damage awards. 1. In any personal injury action, the  prevail-
    10  ing  plaintiff  or  person  who claims injury by or through such injured
    11  plaintiff may be awarded:
    12    (a) compensation for actual economic damages suffered by  the  injured
    13  plaintiff  or  other person who claims injury by or through such injured
    14  plaintiff; and
    15    (b) compensation for  noneconomic  damages  suffered  by  the  injured
    16  plaintiff  or other person who claims injury through such injured plain-
    17  tiff, or as a consequence of injury to such injured  plaintiff,  not  to
    18  exceed two hundred fifty thousand dollars.
    19    2. The damage award recoverable for a personal injury action shall not

    20  exceed the amount permitted to be awarded pursuant to subdivision one of
    21  this section regardless of the number of defendants to such action. If a
    22  jury  awards  an amount for noneconomic damages that exceeds the limita-
    23  tion under subdivision one of this section, the court shall  reduce  the
    24  amount to conform to the limitation.
    25    3.  No  other  personal injury action may be brought by the prevailing
    26  plaintiff or other person who claims injury through such injured  plain-
    27  tiff,  or  as  a  consequence  of  injury  to such injured plaintiff, to
    28  recover amounts for the injury or occurrence that  gives  rise  to  such
    29  personal injury action.
    30    4.  Where a defendant has successfully pleaded and proved contributory

    31  negligence on the part of the prevailing plaintiff pursuant  to  article
    32  fourteen-A of this chapter, the damage award to the prevailing plaintiff
    33  shall be diminished from the amounts awarded pursuant to subdivision one
    34  of  this  section by the proportion which the culpable conduct attribut-
    35  able to the prevailing plaintiff bears to  the  culpable  conduct  which
    36  caused the damages.
    37    5.  Nothing in this section shall be construed to prevent the applica-
    38  tion of section forty-five hundred  forty-five  of  this  chapter  to  a
    39  damage  award  for a personal injury action made pursuant to subdivision
    40  one of this section.
    41    6. Notwithstanding any other provision of law, the jury shall  not  be

    42  instructed of the limitation on noneconomic damages as set forth in this
    43  article.
    44    §  6.  Subparagraph  (i)  of paragraph 1 of subdivision (d) of section
    45  3101 of the civil practice law and rules, as amended by chapter  184  of
    46  the laws of 1988, is amended to read as follows:
    47    (i) Upon request, each party shall identify each person whom the party
    48  expects  to  call  as  an  expert witness at trial and shall disclose in
    49  reasonable detail the subject matter on which each expert is expected to
    50  testify, the substance of the facts and opinions on which each expert is
    51  expected to testify, the qualifications of each  expert  witness  and  a
    52  summary of the grounds for each expert's opinion. However, where a party
    53  for  good  cause  shown retains an expert an insufficient period of time
    54  before the commencement of trial to give appropriate notice thereof, the

    55  party shall not thereupon be precluded  from  introducing  the  expert's
    56  testimony  at  the  trial  solely  on grounds of noncompliance with this

        A. 3335                             5
 
     1  paragraph. In that instance, upon motion of any party, made before or at
     2  trial, or on its own initiative, the court may make whatever  order  may
     3  be  just.  [In an action for medical, dental or podiatric malpractice, a
     4  party, in responding to a request, may omit the names of medical, dental
     5  or  podiatric experts but shall be required to disclose all other infor-
     6  mation concerning such experts otherwise required by this paragraph.]
     7    § 7. Subparagraph (ii) of paragraph 1 of subdivision  (d)  of  section
     8  3101  of the civil practice law and rules is REPEALED and a new subpara-

     9  graph (ii) is added to read as follows:
    10    (ii) Notwithstanding any other provision of this article or of article
    11  thirty-two of this chapter, in an action for medical, dental  or  podia-
    12  tric  malpractice,  at  the  times  and  in the sequence directed by the
    13  court, such times to be prior to the service and filing  of  a  note  of
    14  issue  unless  the  court  directs  otherwise and preserves the right of
    15  every party to depose a person whose disclosure occurs subsequent to the
    16  filing of a note of issue,  each  party  shall  disclose  to  the  other
    17  parties  the  identity of any person who may be used at trial to provide
    18  expert testimony in the case and each such disclosure shall be  accompa-
    19  nied  by a written report prepared and signed by such person. The report

    20  shall contain a complete statement of all opinions to be  expressed  and
    21  the basis and reasons therefor; the data or other information considered
    22  by  such  person  in  forming the opinions; any exhibits to be used as a
    23  summary of or support  for  the  opinions;  the  qualifications  of  the
    24  person,  including  a  list  of  all publications authored by the person
    25  during the preceding ten years; the compensation  to  be  paid  for  the
    26  person's  consideration  of data or other information and for his or her
    27  testimony; and a listing of any other cases  in  which  the  person  has
    28  testified as an expert at trial or by oral deposition within the preced-
    29  ing  four  years. Each party shall be required to produce each person so

    30  identified by such party as an expert witness, for examination upon oral
    31  deposition upon receipt of a notice to take oral deposition  in  accord-
    32  ance with rule thirty-one hundred seven of this article. Unless manifest
    33  injustice  would result, the court shall require that the party noticing
    34  an oral deposition of such an expert witness pay such witness a  reason-
    35  able fee for time spent in attending such oral deposition.  If any party
    36  fails  to  identify a person as an expert witness in accordance with the
    37  provisions of this clause, or if any party  fails  to  make  any  person
    38  identified  by the party as an expert witness available for oral deposi-
    39  tion in accordance with the provisions of this clause, that party  shall

    40  be  precluded  from offering such expert's testimony at the trial of the
    41  action.
    42    § 8. This act shall take effect immediately; except that sections two,
    43  three, six and seven of this act shall take effect on the ninetieth  day
    44  after  this  act  shall  have  become  a  law and shall apply to actions
    45  commenced and claims filed on  or  after  the  effective  date  of  such
    46  sections.  The  provisions  of  sections four and five of this act shall
    47  apply to causes of action and claims accruing on or after the  effective
    48  date of this act.
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