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.
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.
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.