|SAME AS||No Same As|
|Amd §§3012-a & 3101, CPLR|
|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.|
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STATE OF NEW YORK ________________________________________________________________________ 7728 IN SENATE February 13, 2018 ___________ Introduced by Sen. HANNON -- 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 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 consulted15 with at least one physician in medical malpractice actions, at least one16 dentist in dental malpractice actions or at least one podiatrist in17 podiatric malpractice actions who is licensed to practice in this state18 or any other state and who the attorney reasonably believes is know-19 ledgeable in the relevant issues involved in the particular action, and20 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 such22 action; or23 (2) the attorney was unable to obtain the consultation required by24 paragraph one of this subdivision because a limitation of time, estab-25 lished by article two of this chapter, would bar the action and that the26 certificate required by paragraph one of this subdivision could not27 reasonably be obtained before such time expired. If a certificate isEXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14556-02-8S. 7728 2 1 executed pursuant to this subdivision, the certificate required by this2 section shall be filed within ninety days after service of the3 complaint; or4 (3) the attorney was unable to obtain the consultation required by5 paragraph one of this subdivision because the attorney had made three6 separate good faith attempts with three separate physicians, dentists or7 podiatrists, in accordance with the provisions of paragraph one of this8 subdivision to obtain such consultation and none of those contacted9 would agree to such a consultation] the physician in a medical malprac- 10 tice action, or the dentist in a dental malpractice action, or the 11 podiatrist in a podiatric malpractice action has reviewed the complaint 12 in the malpractice action and all medical records supplied by the 13 plaintiff's attorney, or plaintiff if not represented by an attorney, 14 and states each of the following with individual particularization to 15 the specifically named defendant or defendants: 16 (1) The applicable standard of practice or care concerning the allega- 17 tions contained in the complaint. 18 (2) The applicable standard of practice or care breached. 19 (3) The actions that should have been taken or omitted in order to 20 have complied with the applicable standard of care. 21 (4) The manner in which the breach of the standard of practice or care 22 was the proximate cause of the plaintiff's injury. 23 (b) [ Where a certificate is required pursuant to this section, a24 single certificate shall be filed for each action, even if more than one25 defendant has been named in the complaint or is subsequently named] 26 Where an affidavit of merit is required pursuant to this section, an 27 individual affidavit shall be filed for each named defendant who is a 28 physician, dentist or podiatrist named in the complaint. 29 (c) Where the attorney intends to rely solely on the doctrine of "res 30 ipsa loquitur", this section shall be inapplicable. In such cases, the 31 complaint shall be accompanied by [ a certificate] an affidavit, executed 32 by the attorney, declaring that the attorney is solely relying on such 33 doctrine and, for that reason, is not filing [ a certificate] the affida- 34 vit of merit required by this section. 35 (d) [ If a request by the plaintiff for the records of the plaintiff's36 medical or dental treatment by the defendants has been made and such37 records have not been produced, the plaintiff shall not be required to38 serve the certificate required by this section until ninety days after39 such records have been produced] The plaintiff may, in lieu of serving 40 the affidavit of merit required by this section, provide the defendant 41 or defendants with the information required by paragraph one of subdivi- 42 sion (d) of section thirty-one hundred one of this chapter within the 43 period of time prescribed by this section, provided that the disclosure 44 be executed by the physician in a medical malpractice action, or the 45 dentist in a dental malpractice action, or the podiatrist in a podiatric 46 malpractice action who has reviewed the complaint in the malpractice 47 action and all medical records supplied by the plaintiff's attorney. 48 (e) [ For purposes of this section, and subject to the provisions of49 section thirty-one hundred one of this chapter, an attorney who submits50 a certificate as required by paragraph one or two of subdivision (a) of51 this section and the physician, dentist or podiatrist with whom the52 attorney consulted shall not be required to disclose the identity of the53 physician, dentist or podiatrist consulted and the contents of such54 consultation; provided, however, that when the attorney makes a claim55 under paragraph three of subdivision (a) of this section that he was56 unable to obtain the required consultation with the physician, dentistS. 7728 3 1 or podiatrist, the court may, upon the request of a defendant made prior2 to compliance by the plaintiff with the provisions of section thirty-one3 hundred of this chapter, require the attorney to divulge to the court4 the names of physicians, dentists or podiatrists refusing such consulta-5 tion] The plaintiff's attorney or, the plaintiff if not represented by 6 an attorney, may with good cause shown, file a motion to extend the 7 period of time to file the required affidavit of merit. The motion 8 shall be filed together with the complaint. The court may grant reason- 9 able time to file the affidavit of merit, not to exceed ninety days, 10 except the time may be extended beyond ninety days if the court deter- 11 mines that a defendant or non-party has failed to cooperate with access 12 to medical or dental records necessary for the affidavit of merit or 13 that other circumstances warrant extension of time. 14 (f) [ The provisions of this section shall not be applicable to a15 plaintiff who is not represented by an attorney.16 (g) The plaintiff may, in lieu of serving the certificate required by17 this section, provide the defendant or defendants with the information18 required by paragraph one of subdivision (d) of section thirty-one19 hundred one of this chapter within the period of time prescribed by this20 section] Any complaint alleging medical, dental, or podiatric malprac- 21 tice that is not accompanied by an affidavit of merit as required by 22 this section shall be deemed defective as a matter of law and, upon 23 motion by the defendant, be dismissed on the merits by the court. Such 24 dismissal shall be with prejudice. 25 § 2. Subdivision (a) of section 3101 of the civil practice law and 26 rules is amended by adding a new paragraph 5 to read as follows: 27 (5) notwithstanding any provision of subparagraph (i) of paragraph one 28 of subdivision (d) of this section to the contrary, in an action for 29 medical, dental or podiatric malpractice, each party shall serve the 30 disclosure described in such subparagraph within sixty days preceding 31 the filing required by rule thirty-four hundred two of this chapter. 32 Further, at any time after joinder of issue, any party may, by written 33 notice made to and served upon all other parties and filed with the 34 court; conduct an examination upon oral deposition, of any person who 35 has been disclosed as an expert witness by any other party. Each party 36 shall be required to produce his or her expert witness for examination 37 upon oral deposition upon receipt of a notice to take oral deposition in 38 accordance with rule thirty-one hundred seven of this chapter and, 39 unless otherwise ordered by the court, all expert witness depositions 40 shall be taken before the filing required by rule thirty-four hundred 41 two of this chapter. If any party, having received such notice, fails to 42 make that party's expert witness available for oral deposition, that 43 party shall be precluded from offering expert testimony at the trial of 44 the action. For purposes of rule thirty-one hundred ten and rule thir- 45 ty-one hundred seventeen, an expert witness, as provided in this 46 section, shall be considered a party. Each party seeking the deposition 47 of an expert witness shall pay the expert a reasonable fee for the time 48 spent at the deposition. 49 § 3. Paragraph 1 of subdivision (d) of section 3101 of the civil prac- 50 tice law and rules, as amended by chapter 184 of the laws of 1988, 51 subparagraph (ii) as amended by chapter 165 of the laws of 1991, is 52 amended to read as follows: 53 1. Experts. (i) Upon request, each party shall identify each person 54 whom the party expects to call as an expert witness at trial and shall 55 disclose in reasonable detail the subject matter on which each expert is 56 expected to testify, the substance of the facts and opinions on whichS. 7728 4 1 each expert is expected to testify, the qualifications of each expert 2 witness and a summary of the grounds for each expert's opinion. However, 3 where a party for good cause shown retains an expert an insufficient 4 period of time before the commencement of trial to give appropriate 5 notice thereof, the party shall not thereupon be precluded from intro- 6 ducing the expert's testimony at the trial solely on grounds of noncom- 7 pliance with this paragraph. In that instance, upon motion of any party, 8 made before or at trial, or on its own initiative, the court may make 9 whatever order may be just. [ In an action for medical, dental or podia-10 tric malpractice, a party, in responding to a request, may omit the11 names of medical, dental or podiatric experts but shall be required to12 disclose all other information concerning such experts otherwise13 required by this paragraph.14 (ii) In an action for medical, dental or podiatric malpractice, any15 party may, by written offer made to and served upon all other parties16 and filed with the court, offer to disclose the name of, and to make17 available for examination upon oral deposition, any person the party18 making the offer expects to call as an expert witness at trial. Within19 twenty days of service of the offer, a party shall accept or reject the20 offer by serving a written reply upon all parties and filing a copy21 thereof with the court. Failure to serve a reply within twenty days of22 service of the offer shall be deemed a rejection of the offer. If all23 parties accept the offer, each party shall be required to produce his or24 her expert witness for examination upon oral deposition upon receipt of25 a notice to take oral deposition in accordance with rule thirty-one26 hundred seven of this chapter. If any party, having made or accepted the27 offer, fails to make that party's expert available for oral deposition,28 that party shall be precluded from offering expert testimony at the29 trial of the action.30 (iii)] (ii) Further disclosure concerning the expected testimony of 31 any expert, except as expressly provided in paragraph five of subdivi- 32 sion (a) of this section, may be obtained only by court order upon a 33 showing of special circumstances and subject to restrictions as to scope 34 and provisions concerning fees and expenses as the court may deem appro- 35 priate. However, a party, without court order, may take the testimony of 36 a person authorized to practice medicine, dentistry or podiatry who is 37 the party's treating or retained expert, as described in paragraph three 38 of subdivision (a) of this section, in which event any other party shall 39 be entitled to the full disclosure authorized by this article with 40 respect to that expert without court order. 41 § 4. This act shall take effect on the ninetieth day after it shall 42 have become a law, except that section one of this act shall take effect 43 on the one hundred eightieth day after this act shall have become a law.