S T A T E   O F   N E W   Y O R K
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                                  6184

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 26, 2009
                               ___________

Introduced by M. of A. SCHIMMINGER, MAGEE, REILLY, FIELDS, TOBACCO, KOLB
  --  Multi-Sponsored  by  --  M.  of A. ALESSI, BARCLAY, CROUCH, GALEF,
  HAWLEY, MILLER, QUINN, TOWNS -- read once and referred to the  Commit-
  tee 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:

  Section  1.  Short  title. This act shall be known and may be cited as
the "medical liability reform act".
  S 2. Section 3012-a of the civil practice law and rules, as amended by
chapter 507 of the laws of 1987, is amended to read as follows:
  S 3012-a. Certificate of merit in medical, dental and podiatric  malp-
ractice  actions.  (a)  In  any  action for medical, dental or podiatric
malpractice, the  complaint  shall  be  accompanied  by  a  certificate,
executed by the attorney for the plaintiff, declaring that:
  (1)  the attorney has reviewed the facts of the case and has consulted
with at least one physician in medical malpractice actions, at least one
dentist in dental malpractice actions or  at  least  one  podiatrist  in
podiatric  malpractice actions who is licensed to practice in this state
[or any other state] and who the attorney reasonably believes  is  know-
ledgeable  in the relevant issues involved in the particular action, AND
WHO HAS SIGNED AN AFFIDAVIT CONCLUDING THAT THERE IS A REASONABLE  BASIS
FOR  THE COMMENCEMENT OF AN ACTION, WITH SUCH AFFIDAVIT TO ACCOMPANY THE
CERTIFICATE  REQUIRED  BY  THIS  SECTION,  and  that  the  attorney  has
concluded  on the basis of such review [and], consultation AND AFFIDAVIT
that there is a reasonable basis for the commencement of such action; or

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09249-01-9

              

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  (2) the attorney was unable to obtain the consultation  AND  AFFIDAVIT
required  by  paragraph  one of this subdivision because a limitation of
time, established by article two of this chapter, would bar  the  action
and  that  the certificate required by paragraph one of this subdivision
could  not reasonably be obtained before such time expired. If a certif-
icate is executed pursuant to this subdivision, the certificate required
by this section shall be filed within ninety days after service  of  the
complaint; or
  (3)  the  attorney was unable to obtain the consultation AND AFFIDAVIT
required by paragraph one of this subdivision because the  attorney  had
made  three separate good faith attempts with three separate physicians,
dentists or podiatrists, in accordance with the provisions of  paragraph
one  of  this  subdivision to obtain such consultation and none of those
contacted would agree to such a consultation.
  (b) Where a certificate is required pursuant to this section, a single
certificate shall be filed for  each  action,  even  if  more  than  one
defendant has been named in the complaint or is subsequently named.
  (c)  Where the attorney intends to rely solely on the doctrine of "res
ipsa loquitur", this section shall be inapplicable.  In such cases,  the
complaint  shall be accompanied by a certificate, executed by the attor-
ney, declaring that the attorney is solely relying on such doctrine and,
for that reason, is not filing a certificate required by this section.
  (d) If a request by the plaintiff for the records of  the  plaintiff's
medical  or  dental  treatment  by the defendants has been made and such
records have not been produced, the plaintiff shall not be  required  to
serve  the  certificate required by this section until ninety days after
such records have been produced.
  (e) [For purposes of this section, and subject to  the  provisions  of
section  thirty-one hundred one of this chapter, an attorney who submits
a certificate as required by paragraph one or two of subdivision (a)  of
this  section  and  the  physician,  dentist or podiatrist with whom the
attorney consulted shall not be required to disclose the identity of the
physician, dentist or podiatrist consulted  and  the  contents  of  such
consultation; provided, however, that when the] WHEN AN attorney makes a
claim  under  paragraph three of subdivision (a) of this section that he
OR SHE was unable to obtain the required consultation AND AFFIDAVIT with
the physician, dentist or podiatrist, the court may, upon the request of
a  defendant  made  prior  to  compliance  by  the  plaintiff  with  the
provisions  of  [section  thirty-one hundred] ARTICLE THIRTY-ONE of this
chapter, require the attorney to divulge  to  the  court  the  names  of
physicians, dentists or podiatrists refusing such consultation.
  (f) The provisions of this section shall not be applicable to a plain-
tiff who is not represented by an attorney.
  (g)  The plaintiff may, in lieu of serving the certificate AND AFFIDA-
VIT required by this section, provide the defendant or  defendants  with
the  information required by paragraph one of subdivision (d) of section
thirty-one hundred one  of  this  chapter  within  the  period  of  time
prescribed by this section.
  (H)  WHERE  A  CERTIFICATE  AND AFFIDAVIT IS REQUIRED PURSUANT TO THIS
SECTION, THE FAILURE TO TIMELY FILE SUCH CERTIFICATE AND AFFIDAVIT SHALL
REQUIRE THAT THE ACTION BE DEEMED  A  DISMISSAL  OF  THE  COMPLAINT  FOR
NEGLECT  TO FILE THE ACTION FOR THE PURPOSES OF SECTION TWO HUNDRED FIVE
OF THIS CHAPTER.
  S 3. Section 1600 of the civil practice law and  rules,  as  added  by
chapter 682 of the laws of 1986, is amended to read as follows:

A. 6184                             3

  S  1600.  Definitions. As used in this article [the term "non-economic
loss" includes but is not limited to pain and suffering, mental anguish,
loss of consortium or other damages for non-economic loss]:
  1. "NONECONOMIC DAMAGES" MEANS NONPECUNIARY DAMAGES ARISING FROM PAIN,
SUFFERING,  INCONVENIENCE,  PHYSICAL IMPAIRMENT OR DISFIGUREMENT, MENTAL
ANGUISH, EMOTIONAL DISTRESS, LOSS OF SOCIETY AND COMPANIONSHIP, LOSS  OF
CONSORTIUM, INJURY TO REPUTATION, HUMILIATION AND ALL OTHER NONPECUNIARY
DAMAGES.
  2.  "ACTUAL  ECONOMIC  DAMAGES" MEANS OBJECTIVELY VERIFIABLE PECUNIARY
DAMAGES ARISING FROM MEDICAL EXPENSES AND MEDICAL CARE, LOSS OF EARNINGS
AND EARNING CAPACITY, BURIAL COSTS, LOSS OF USE  OF  PROPERTY,  LOSS  OF
GUIDANCE, COSTS OF REPAIR OR REPLACEMENT OF PROPERTY, COSTS OF OBTAINING
SUBSTITUTE  DOMESTIC  SERVICES,  LOSS OF EMPLOYMENT, LOSS OF BUSINESS OR
EMPLOYMENT OPPORTUNITIES, REHABILITATION SERVICES,  CUSTODIAL  CARE  AND
ALL OTHER PECUNIARY DAMAGES.
  S  4.  Section  1601  of the civil practice law and rules, as added by
chapter 682 of the laws of 1986 and subdivision 1 as amended by  chapter
635 of the laws of 1996, is amended to read as follows:
  S  1601.  Limited  liability  of persons jointly liable.  1.  Notwith-
standing any other provision of law, when a verdict or  decision  in  an
action or claim for personal injury is determined in favor of a claimant
in  an  action  involving two or more tortfeasors jointly liable or in a
claim against the state [and the liability of a defendant is found to be
fifty percent or less of the total liability  assigned  to  all  persons
liable], the liability of [such] A defendant to the claimant for [non-e-
conomic  loss]  THE  CLAIMANT'S  ACTUAL ECONOMIC DAMAGES AND NONECONOMIC
DAMAGES shall not exceed that defendant's equitable share determined  in
accordance  with  the  relative  culpability  of  each person causing or
contributing to the total liability for [non-economic loss]  THE  CLAIM-
ANT'S ACTUAL ECONOMIC DAMAGES AND NONECONOMIC DAMAGES; provided, however
that  the culpable conduct of any person not a party to the action shall
not be considered in determining  any  equitable  share  herein  if  the
claimant  proves  that with due diligence he or she was unable to obtain
jurisdiction over such person in said action (or in a claim against  the
state, in a court of this state); and further provided that the culpable
conduct of any person shall not be considered in determining any equita-
ble share herein to the extent that action against such person is barred
because  the  claimant  has not sustained a "grave injury" as defined in
section eleven of the workers' compensation law.
  2. Nothing in this section shall be construed to affect or impair  any
right  of  a  tortfeasor under section 15-108 of the general obligations
law.
  S 5. The civil practice law and rules is amended by adding a new arti-
cle 50-C to read as follows:
                               ARTICLE 50-C
                        LIMITATION ON NONECONOMIC
                                 DAMAGES
SECTION 5051. DEFINITIONS.
        5052. DAMAGE AWARDS.
  S 5051. DEFINITIONS. AS USED IN THIS ARTICLE:
  1. "NONECONOMIC DAMAGES" MEANS NONPECUNIARY DAMAGES ARISING FROM PAIN,
SUFFERING, INCONVENIENCE, PHYSICAL IMPAIRMENT OR  DISFIGUREMENT,  MENTAL
ANGUISH,  EMOTIONAL DISTRESS, LOSS OF SOCIETY AND COMPANIONSHIP, LOSS OF
CONSORTIUM, INJURY TO REPUTATION, HUMILIATION AND ALL OTHER NONPECUNIARY
DAMAGES.

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  2. "ACTUAL ECONOMIC DAMAGES" MEANS  OBJECTIVELY  VERIFIABLE  PECUNIARY
DAMAGES ARISING FROM MEDICAL EXPENSES AND MEDICAL CARE, LOSS OF EARNINGS
AND  EARNING  CAPACITY,  BURIAL  COSTS, LOSS OF USE OF PROPERTY, LOSS OF
GUIDANCE, COSTS OF REPAIR OR REPLACEMENT OF PROPERTY, COSTS OF OBTAINING
SUBSTITUTE  DOMESTIC  SERVICES,  LOSS OF EMPLOYMENT, LOSS OF BUSINESS OR
EMPLOYMENT OPPORTUNITIES, REHABILITATION SERVICES,  CUSTODIAL  CARE  AND
ALL OTHER PECUNIARY DAMAGES.
  3.  "PERSONAL  INJURY  ACTION"  MEANS  ANY ACTION, INCLUDING BUT IN NO
MANNER LIMITED TO MEDICAL, DENTAL  AND  PODIATRIC  MALPRACTICE  ACTIONS,
WHETHER  IN  TORT,  CONTRACT  OR OTHERWISE, IN WHICH THE PLAINTIFF SEEKS
DAMAGES FOR INJURY TO THE PERSON OR WRONGFUL DEATH.
  4. "COMPENSATION" MEANS MONETARY AWARDS.
  S 5052. DAMAGE AWARDS. 1. IN ANY PERSONAL INJURY ACTION, THE  PREVAIL-
ING  PLAINTIFF  OR  PERSON  WHO CLAIMS INJURY BY OR THROUGH SUCH INJURED
PLAINTIFF MAY BE AWARDED:
  (A) COMPENSATION FOR ACTUAL ECONOMIC DAMAGES SUFFERED BY  THE  INJURED
PLAINTIFF  OR  OTHER PERSON WHO CLAIMS INJURY BY OR THROUGH SUCH INJURED
PLAINTIFF; AND
  (B) COMPENSATION FOR  NONECONOMIC  DAMAGES  SUFFERED  BY  THE  INJURED
PLAINTIFF  OR OTHER PERSON WHO CLAIMS INJURY THROUGH SUCH INJURED PLAIN-
TIFF, OR AS A CONSEQUENCE OF INJURY TO SUCH INJURED  PLAINTIFF,  NOT  TO
EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS.
  2. THE DAMAGE AWARD RECOVERABLE FOR A PERSONAL INJURY ACTION SHALL NOT
EXCEED THE AMOUNT PERMITTED TO BE AWARDED PURSUANT TO SUBDIVISION ONE OF
THIS SECTION REGARDLESS OF THE NUMBER OF DEFENDANTS TO SUCH ACTION. IF A
JURY  AWARDS  AN AMOUNT FOR NONECONOMIC DAMAGES THAT EXCEEDS THE LIMITA-
TION UNDER SUBDIVISION ONE OF THIS SECTION, THE COURT SHALL  REDUCE  THE
AMOUNT TO CONFORM TO THE LIMITATION.
  3.  NO  OTHER  PERSONAL INJURY ACTION MAY BE BROUGHT BY THE PREVAILING
PLAINTIFF OR OTHER PERSON WHO CLAIMS INJURY THROUGH SUCH INJURED  PLAIN-
TIFF,  OR  AS  A  CONSEQUENCE  OF  INJURY  TO SUCH INJURED PLAINTIFF, TO
RECOVER AMOUNTS FOR THE INJURY OR OCCURRENCE THAT  GIVES  RISE  TO  SUCH
PERSONAL INJURY ACTION.
  4.  WHERE A DEFENDANT HAS SUCCESSFULLY PLEADED AND PROVED CONTRIBUTORY
NEGLIGENCE ON THE PART OF THE PREVAILING PLAINTIFF PURSUANT  TO  ARTICLE
FOURTEEN-A OF THIS CHAPTER, THE DAMAGE AWARD TO THE PREVAILING PLAINTIFF
SHALL BE DIMINISHED FROM THE AMOUNTS AWARDED PURSUANT TO SUBDIVISION ONE
OF  THIS  SECTION BY THE PROPORTION WHICH THE CULPABLE CONDUCT ATTRIBUT-
ABLE TO THE PREVAILING PLAINTIFF BEARS TO  THE  CULPABLE  CONDUCT  WHICH
CAUSED THE DAMAGES.
  5.  NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PREVENT THE APPLICA-
TION OF SECTION FORTY-FIVE HUNDRED  FORTY-FIVE  OF  THIS  CHAPTER  TO  A
DAMAGE  AWARD  FOR A PERSONAL INJURY ACTION MADE PURSUANT TO SUBDIVISION
ONE OF THIS SECTION.
  6. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE JURY SHALL  NOT  BE
INSTRUCTED OF THE LIMITATION ON NONECONOMIC DAMAGES AS SET FORTH IN THIS
ARTICLE.
  S  6.  Subparagraph  (i)  of paragraph 1 of subdivision (d) of section
3101 of the civil practice law and rules, as amended by chapter  184  of
the laws of 1988, is amended to read as follows:
  (i) Upon request, each party shall identify each person whom the party
expects  to  call  as  an  expert witness at trial and shall disclose in
reasonable detail the subject matter on which each expert is expected to
testify, the substance of the facts and opinions on which each expert is
expected to testify, the qualifications of each  expert  witness  and  a
summary of the grounds for each expert's opinion. However, where a party

A. 6184                             5

for  good  cause  shown retains an expert an insufficient period of time
before the commencement of trial to give appropriate notice thereof, the
party shall not thereupon be precluded  from  introducing  the  expert's
testimony  at  the  trial  solely  on grounds of noncompliance with this
paragraph. In that instance, upon motion of any party, made before or at
trial, or on its own initiative, the court may make whatever  order  may
be  just.  [In an action for medical, dental or podiatric malpractice, a
party, in responding to a request, may omit the names of medical, dental
or podiatric experts but shall be required to disclose all other  infor-
mation concerning such experts otherwise required by this paragraph.]
  S  7.  Subparagraph  (ii) of paragraph 1 of subdivision (d) of section
3101 of the civil practice law and rules is REPEALED and a new  subpara-
graph (ii) is added to read as follows:
  (II) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE OR OF ARTICLE
THIRTY-TWO  OF  THIS CHAPTER, IN AN ACTION FOR MEDICAL, DENTAL OR PODIA-
TRIC MALPRACTICE, AT THE TIMES AND  IN  THE  SEQUENCE  DIRECTED  BY  THE
COURT,  SUCH  TIMES  TO  BE PRIOR TO THE SERVICE AND FILING OF A NOTE OF
ISSUE UNLESS THE COURT DIRECTS OTHERWISE  AND  PRESERVES  THE  RIGHT  OF
EVERY PARTY TO DEPOSE A PERSON WHOSE DISCLOSURE OCCURS SUBSEQUENT TO THE
FILING  OF  A  NOTE  OF  ISSUE,  EACH  PARTY SHALL DISCLOSE TO THE OTHER
PARTIES THE IDENTITY OF ANY PERSON WHO MAY BE USED AT TRIAL  TO  PROVIDE
EXPERT  TESTIMONY IN THE CASE AND EACH SUCH DISCLOSURE SHALL BE ACCOMPA-
NIED BY A WRITTEN REPORT PREPARED AND SIGNED BY SUCH PERSON. THE  REPORT
SHALL  CONTAIN  A COMPLETE STATEMENT OF ALL OPINIONS TO BE EXPRESSED AND
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 PRECED-
ING FOUR YEARS. EACH PARTY SHALL BE REQUIRED TO PRODUCE EACH  PERSON  SO
IDENTIFIED BY SUCH PARTY AS AN EXPERT WITNESS, FOR EXAMINATION UPON ORAL
DEPOSITION  UPON  RECEIPT OF A NOTICE TO TAKE ORAL DEPOSITION IN ACCORD-
ANCE WITH RULE THIRTY-ONE HUNDRED SEVEN OF THIS ARTICLE. 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 REASON-
ABLE FEE FOR TIME SPENT IN ATTENDING SUCH ORAL DEPOSITION.  IF ANY PARTY
FAILS TO IDENTIFY A PERSON AS AN EXPERT WITNESS IN ACCORDANCE  WITH  THE
PROVISIONS  OF  THIS  CLAUSE,  OR  IF ANY PARTY FAILS TO MAKE ANY PERSON
IDENTIFIED BY THE PARTY AS AN EXPERT WITNESS AVAILABLE FOR ORAL  DEPOSI-
TION  IN ACCORDANCE WITH THE PROVISIONS OF THIS CLAUSE, THAT PARTY SHALL
BE PRECLUDED FROM OFFERING SUCH EXPERT'S TESTIMONY AT THE TRIAL  OF  THE
ACTION.
  S 8. This act shall take effect immediately; except that sections two,
three,  six and seven of this act shall take effect on the ninetieth day
after this act shall have become  a  law  and  shall  apply  to  actions
commenced  and  claims  filed  on  or  after  the effective date of such
sections. The provisions of sections four and five  of  this  act  shall
apply  to causes of action and claims accruing on or after the effective
date of this act.