S02531 Summary:

BILL NOS02531
 
SAME ASNo same as
 
SPONSORHANNON
 
COSPNSR
 
MLTSPNSR
 
Amd S3101, rpld sub (d) 1 sub (ii), add Art 44-A SS4410 - 4417, CPLR; amd S6530, Ed L
 
Relates to the use of expert medical testimony; creates the health care courts pilot program; creates a new element of professional misconduct for providing expert witness testimony that is without reasonable medical foundation.
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S02531 Actions:

BILL NOS02531
 
01/18/2013REFERRED TO JUDICIARY
01/08/2014REFERRED TO JUDICIARY
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S02531 Floor Votes:

There are no votes for this bill in this legislative session.
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S02531 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2531
 
                               2013-2014 Regular Sessions
 
                    IN SENATE
 
                                    January 18, 2013
                                       ___________
 
        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 and the education  law,
          in relation to the use of expert medical testimony; to amend the civil
          practice law and rules, in relation to creating the health care courts

          pilot  program; and to repeal certain provisions of the civil practice
          law and rules relating thereto
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Subparagraph  (i)  of  paragraph  1 of subdivision (d) of
     2  section 3101 of the civil practice law and rules, as amended by  chapter
     3  184 of the laws of 1988, is amended to read as follows:
     4    (i) Upon request, each party shall identify each person whom the party
     5  expects  to  call  as  an  expert witness at trial and shall disclose in
     6  reasonable detail the subject matter on which each expert is expected to
     7  testify, the substance of the facts and opinions on which each expert is
     8  expected to testify, the qualifications of each  expert  witness  and  a
     9  summary of the grounds for each expert's opinion. However, where a party

    10  for  good  cause  shown retains an expert an insufficient period of time
    11  before the commencement of trial to give appropriate notice thereof, the
    12  party shall not thereupon be precluded  from  introducing  the  expert's
    13  testimony  at  the  trial  solely  on grounds of noncompliance with this
    14  paragraph. In that instance, upon motion of any party, made before or at
    15  trial, or on its own initiative, the court may make whatever  order  may
    16  be  just.  In an action for medical, dental or podiatric malpractice, [a
    17  party, in responding to a request, may omit the names of medical, dental
    18  or podiatric experts but shall be required to disclose all other  infor-
    19  mation  concerning such experts otherwise required by this paragraph] no
    20  individual shall be qualified to testify as  an  expert  witness  unless

    21  such  individual  is  a health care professional who: (A) is licensed to
    22  practice in at least one state in the same profession as the  defendant;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05785-01-3

        S. 2531                             2
 
     1  (B) is actively engaged in clinical practice or teaching and experienced
     2  in  the  care  at issue; and (C) if the defendant is board certified and
     3  the standard of care at issue involves his or her specialty, the  expert
     4  must be board certified in the same specialty.
     5    §  2.  Subparagraph  (ii) of paragraph 1 of subdivision (d) of section

     6  3101 of the civil practice law and rules is REPEALED and a new  subpara-
     7  graph (ii) is added to read as follows:
     8    (ii) Notwithstanding any other provision of this article or of article
     9  thirty-two  of  this chapter, in an action for medical, dental or podia-
    10  tric malpractice, at the times and  in  the  sequence  directed  by  the
    11  court,  such  times  to  be prior to the service and filing of a note of
    12  issue unless the court directs otherwise  and  preserves  the  right  of
    13  every party to depose a person whose disclosure occurs subsequent to the
    14  filing  of  a  note  of  issue,  each  party shall disclose to the other
    15  parties the identity of any person who may be used at trial  to  provide
    16  expert  testimony in the case and each such disclosure shall be accompa-

    17  nied by a written report prepared and signed by such person. The  report
    18  shall  contain  a complete statement of all opinions to be expressed and
    19  the basis and reasons therefor; the data or other information considered
    20  by such person in forming the opinions; any exhibits to  be  used  as  a
    21  summary  of  or  support  for  the  opinions;  the qualifications of the
    22  person, including a list of all  publications  authored  by  the  person
    23  during  the  preceding  ten  years;  the compensation to be paid for the
    24  person's consideration of data or other information and for his  or  her
    25  testimony;  and  a  listing  of  any other cases in which the person has
    26  testified as an expert at trial or by oral deposition within the preced-

    27  ing four years. Each party shall be required to produce each  person  so
    28  identified by such party as an expert witness, for examination upon oral
    29  deposition  upon  receipt of a notice to take oral deposition in accord-
    30  ance with rule thirty-one hundred seven of this article. Unless manifest
    31  injustice would result, the court shall require that the party  noticing
    32  an  oral deposition of such an expert witness pay such witness a reason-
    33  able fee for time spent in attending such oral deposition. If any  party
    34  fails  to  identify a person as an expert witness in accordance with the
    35  provisions of this subparagraph, or if  any  party  fails  to  make  any
    36  person  identified  by the party as an expert witness available for oral

    37  deposition in accordance with the provisions of this subparagraph,  such
    38  party  shall  be  precluded from offering such expert's testimony at the
    39  trial of the action.
    40    § 3. The civil practice law and rules is amended by adding a new arti-
    41  cle 44-A to read as follows:
    42                                ARTICLE 44-A
    43                      HEALTH CARE COURTS PILOT PROGRAM
    44  Section 4410. Creation.
    45          4411. Health care court judges; selection.
    46          4412. Judicial training.
    47          4413. Court appointed medical experts.
    48          4414. Procedure.
    49          4415. Appellate review.
    50          4416. Reports.
    51          4417. Disclaimer.

    52    § 4410. Creation. The office of court administration may select up  to
    53  five  counties,  each within a separate judicial district in this state,
    54  to establish specialized health care courts within the supreme court  of
    55  such counties to govern claims for medical, dental or podiatric malprac-
    56  tice as set forth in this section. Once a supreme court within a partic-

        S. 2531                             3
 
     1  ular  county  has  established  a health care court as set forth in this
     2  section, such court shall  have  exclusive  jurisdiction  over  all  the
     3  claims  for  medical, dental or podiatric malpractice brought within the
     4  supreme court of such county.

     5    §  4411. Health care court judges; selection. Judges shall be selected
     6  to serve in the health care court division from among those  judges  who
     7  are  elected  or  appointed to the supreme court in a county selected to
     8  participate in the health care courts pilot program.   For the  purposes
     9  of this article, "judge" shall mean a judge of the health care division.
    10    §  4412. Judicial training. (a) Upon selection of a particular supreme
    11  court judge to hear cases in the county's health care court and prior to
    12  hearing such cases,  each  judge  shall  complete  a  judicial  training
    13  program  on  the  law  and science of medicine that may be the basis for
    14  cases falling under the jurisdiction of  the  health  care  court.  Such

    15  program shall be administered by the office of court administration.
    16    (b)  A  committee  shall  be  created to develop the curriculum of the
    17  judicial training program. A task force  shall  be  coordinated  by  the
    18  office  of  court  administration and shall include equal representation
    19  from the Medical Society of the State of New York and the New York State
    20  Bar Association.
    21    (c) The curriculum to be created pursuant to subdivision (b)  of  this
    22  section shall include both in-classroom clinical training and an intern-
    23  ship.  The  in-classroom  clinical training shall include at the minimum
    24  the following: an overview of  the  major  body  systems,  pharmacology,
    25  common disease pathology, alternative medicine therapies, and the educa-

    26  tion and training required for various health professionals. The intern-
    27  ship  shall  provide judges an opportunity to follow a practicing physi-
    28  cian and other  health  care  professionals  in  different  health  care
    29  settings.  The training program may also include a legal component which
    30  shall include a review of medical legal issues that may be the basis  of
    31  cases falling under the jurisdiction of the health care court.
    32    §  4413.  Court  appointed  medical experts. (a) The health care court
    33  shall maintain a list of qualified medical experts who may  be  utilized
    34  by  the  court to provide independent expert opinions to the judge. Such
    35  experts may provide opinions in writing to the judge or may be called by

    36  the judge to testify before the court to clarify  or  interpret  medical
    37  testimony or evidence, or for any other purpose the judge deems relevant
    38  to the proceedings.
    39    (b)  A  court appointed medical expert must meet the following minimum
    40  expert witness requirements:
    41    (1) Holds an active license in the same profession as  the  defendant.
    42  If  the  defendant  is  licensed to practice medicine in this state, the
    43  expert witness must also be licensed to practice medicine in this state;
    44    (2) Is trained and experienced in the same  discipline  or  school  of
    45  practice  as  the  defendant  and  can demonstrate by competent evidence
    46  that, as a result of training,  education, knowledge, and experience  in

    47  the  evaluation, diagnosis, and treatment of the disease or injury which
    48  is the subject matter of the lawsuit against the defendant, the individ-
    49  ual was substantially familiar with the applicable standards of care and
    50  practice as they relate to the act or omission which is the  subject  of
    51  the lawsuit on the date of the incident;
    52    (3)  If the defendant is certified by a board recognized by the Ameri-
    53  can Board of Medical Specialities or the  American  Osteopathic  Associ-
    54  ation,  the  expert  must  be certified in the same specialty by a board
    55  recognized by the American Board of Medical Specialities or the American
    56  Osteopathic Association and must have acknowledged expertise and  train-


        S. 2531                             4
 
     1  ing  directly  related to the particular health care or matter at issue;
     2  and
     3    (4)  Within  five  years  of the date of the alleged occurrence giving
     4  rise to the claim, was in active medical practice in the same discipline
     5  or school of practice as the defendant or devoted a substantial  portion
     6  of  his time teaching at an accredited medical school, or in university-
     7  based research in relation to the medical care and type of treatment  at
     8  issue.
     9    (c)  A  court appointed medical expert shall have no financial ties or
    10  familial relationship with any party to the lawsuit, any  expert  called
    11  to testify, or any attorney representing any party to the lawsuit.

    12    (d) The court appointed medical expert shall have no ex parte communi-
    13  cations with any party to the lawsuit, except as permitted by the court.
    14    (e)  The  plaintiff  and  defendant shall equally compensate the court
    15  appointed medical expert based on the prevailing fee for medical experts
    16  with similar qualifications.
    17    § 4414. Procedure. Claims adjudicated through the  health  care  court
    18  shall  adhere  to  this chapter except as otherwise provided for in this
    19  article.
    20    § 4415. Appellate review. Any party to an  action  in  a  health  care
    21  court  may avail themselves of all appeal rights that otherwise would be
    22  available under this chapter.

    23    § 4416. Reports. The office of court administration  shall  submit  an
    24  annual report to the speaker of the assembly, the temporary president of
    25  the  senate,  the  minority leader of the senate, the minority leader of
    26  the assembly and the governor describing the functioning of  the  health
    27  care  courts,  including  the number of disputes heard by the courts and
    28  recommendations for improving the ability  of  such  courts  to  resolve
    29  claims involving medical, dental or podiatric malpractice.
    30    §  4417.  Disclaimer.  Nothing  in  this article shall be construed to
    31  remove the jury as the ultimate finder of fact in an action for medical,
    32  dental or podiatric malpractice.
    33    § 4. Section 6530 of the education law is  amended  by  adding  a  new

    34  subdivision 50 to read as follows:
    35    50.  Providing  expert  medical  testimony that is false or completely
    36  without reasonable medical foundation in any action for injury or  death
    37  arising  out  of  the  provision  of  or  failure to provide health care
    38  services. As used in this subdivision, testimony may be considered false
    39  or completely without reasonable medical foundation if  it  was  without
    40  foundation in accepted peer reviewed science-based medical research.
    41    §  5.  This  act shall take effect on the ninetieth day after it shall
    42  have become a law.
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