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S07728 Summary:

BILL NOS07728
 
SAME ASNo Same As
 
SPONSORHANNON
 
COSPNSR
 
MLTSPNSR
 
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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S07728 Text:



 
                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  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-
    25  lished by article two of this chapter, would bar the action and that the
    26  certificate  required  by  paragraph  one  of this subdivision could not
    27  reasonably be obtained before such time expired.  If  a  certificate  is

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14556-02-8

        S. 7728                             2

     1  executed  pursuant to this subdivision, the certificate required by this
     2  section  shall  be  filed  within  ninety  days  after  service  of  the
     3  complaint; or
     4    (3)  the  attorney  was  unable to obtain the consultation required by
     5  paragraph one of this subdivision because the attorney  had  made  three
     6  separate good faith attempts with three separate physicians, dentists or
     7  podiatrists,  in accordance with the provisions of paragraph one of this
     8  subdivision to obtain such consultation  and  none  of  those  contacted
     9  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,  a
    24  single certificate shall be filed for each action, even if more than one
    25  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's
    36  medical or dental treatment by the defendants has  been  made  and  such
    37  records  have  not been produced, the plaintiff shall not be required to
    38  serve the certificate required by this section until ninety  days  after
    39  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 of
    49  section thirty-one hundred one of this chapter, an attorney who  submits
    50  a  certificate as required by paragraph one or two of subdivision (a) of
    51  this section and the physician, dentist  or  podiatrist  with  whom  the
    52  attorney consulted shall not be required to disclose the identity of the
    53  physician,  dentist  or  podiatrist  consulted  and the contents of such
    54  consultation; provided, however, that when the attorney  makes  a  claim
    55  under  paragraph  three  of  subdivision (a) of this section that he was
    56  unable to obtain the required consultation with the  physician,  dentist

        S. 7728                             3

     1  or podiatrist, the court may, upon the request of a defendant made prior
     2  to compliance by the plaintiff with the provisions of section thirty-one
     3  hundred  of  this  chapter, require the attorney to divulge to the court
     4  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 a
    15  plaintiff who is not represented by an attorney.
    16    (g) The plaintiff may, in lieu of serving the certificate required  by
    17  this  section,  provide the defendant or defendants with the information
    18  required by paragraph one  of  subdivision  (d)  of  section  thirty-one
    19  hundred one of this chapter within the period of time prescribed by this
    20  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  which

        S. 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  the
    11  names  of  medical, dental or podiatric experts but shall be required to
    12  disclose  all  other  information  concerning  such  experts   otherwise
    13  required by this paragraph.
    14    (ii)  In  an  action for medical, dental or podiatric malpractice, any
    15  party may, by written offer made to and served upon  all  other  parties
    16  and  filed  with  the  court, offer to disclose the name of, and to make
    17  available for examination upon oral deposition,  any  person  the  party
    18  making  the  offer expects to call as an expert witness at trial. Within
    19  twenty days of service of the offer, a party shall accept or reject  the
    20  offer  by  serving  a  written  reply upon all parties and filing a copy
    21  thereof with the court. Failure to serve a reply within twenty  days  of
    22  service  of  the  offer shall be deemed a rejection of the offer. If all
    23  parties accept the offer, each party shall be required to produce his or
    24  her expert witness for examination upon oral deposition upon receipt  of
    25  a  notice  to  take  oral  deposition in accordance with rule thirty-one
    26  hundred seven of this chapter. If any party, having made or accepted the
    27  offer, fails to make that party's expert available for oral  deposition,
    28  that  party  shall  be  precluded  from offering expert testimony at the
    29  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.
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