S. 2744 2
1. "PERSONAL INJURY ACTION" MEANS ANY MEDICAL MALPRACTICE ACTION
ACCRUING PRIOR TO, ON, OR AFTER THE EFFECTIVE DATE OF THIS ARTICLE
AGAINST AN ATTENDING PHYSICIAN OR MIDWIFE, OR ANY SUCH ACTION AGAINST A
PROFESSIONAL SERVICES LIMITED LIABILITY COMPANY, A FOREIGN PROFESSIONAL
SERVICES LIMITED LIABILITY COMPANY, A REGISTERED LIMITED LIABILITY PART-
NERSHIP OR A NEW YORK REGISTERED FOREIGN LIMITED LIABILITY PARTNERSHIP
ORGANIZED OR OPERATING PURSUANT TO THE PROVISIONS OF THE LIMITED LIABIL-
ITY LAW OR THE PARTNERSHIP LAW WHERE THE ATTENDING PHYSICIAN OR MIDWIFE
HAS A MEMBERSHIP OR PARTNERSHIP INTEREST, OR IS AN EMPLOYEE, WHETHER
SUCH ACTION IS ALLEGED IN TORT, CONTRACT, COMMON LAW, CASE LAW, STATUTE
OR OTHERWISE, AND IN WHICH THE PLAINTIFF OR PLAINTIFFS SEEK NON-ECONOMIC
AND/OR ACTUAL ECONOMIC DAMAGES AS A RESULT OF THE NEGLIGENCE OR OTHER
MISCONDUCT OF THE ATTENDING PHYSICIAN OR MIDWIFE WHICH IS ALLEGED TO
HAVE CAUSED AN INJURY TO AN INFANT PRIOR TO, DURING, OR IMMEDIATELY
AFTER HIS OR HER BIRTH OR DELIVERY.
2. "ATTENDING PHYSICIAN" MEANS AN OBSTETRICIAN-GYNECOLOGIST OR A
PHYSICIAN ENGAGED IN FAMILY PRACTICE WHOSE PROFESSIONAL LIABILITY INSUR-
ANCE CLASSIFICATION INCLUDES OBSTETRICS.
3. "MIDWIFE" MEANS A MIDWIFE WHO IS LICENSED UNDER THE PROVISIONS OF
ARTICLE ONE HUNDRED FORTY OF THE EDUCATION LAW AND WHO HAS ENTERED INTO
A WRITTEN AGREEMENT WITH AN ATTENDING PHYSICIAN AS PROVIDED FOR IN
SECTION SIX THOUSAND NINE HUNDRED FIFTY-ONE OF SUCH ARTICLE.
4. "NON-ECONOMIC DAMAGES" MEANS SUBJECTIVE, NON-PECUNIARY 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
ANY OTHER NON-PECUNIARY DAMAGES, HOWEVER IDENTIFIED.
5. "ACTUAL ECONOMIC DAMAGES" MEANS OBJECTIVELY VERIFIABLE PECUNIARY
DAMAGES ARISING FROM LOSS OF EARNINGS AND EARNING CAPACITY, BURIAL
COSTS, AND ANY OTHER PECUNIARY DAMAGES HOWEVER IDENTIFIED PROVIDED,
HOWEVER, THAT SUCH TERM SHALL NOT INCLUDE THE COST OF ANY MEDICAL CARE,
TREATMENT OR SERVICES, INCLUDING CUSTODIAL CARE, WHICH MAY BE REQUIRED
TO BE PROVIDED IN THE FUTURE TO ANY INJURED PLAINTIFF.
S 7581. APPLICABILITY. THE PROVISIONS OF THIS ARTICLE SHALL APPLY TO
ALL CLAIMS FOR DAMAGES IN A PERSONAL INJURY ACTION RESULTING FROM THE
NEGLIGENCE OR OTHER MISCONDUCT OF AN ATTENDING PHYSICIAN OR A MIDWIFE AT
THE BIRTH OF AN INFANT, WHOSE NEGLIGENCE OR MISCONDUCT IS ALLEGED TO
HAVE CAUSED INJURY TO AN INFANT PRIOR TO, DURING, OR IMMEDIATELY AFTER
HIS OR HER BIRTH OR DELIVERY AND ALL OTHER CLAIMS, CROSS-CLAIMS, COUN-
TER-CLAIMS, AND CLAIMS FOR CONTRIBUTION AND INDEMNITY ARISING FROM SUCH
CLAIM.
S 7582. LIMITATION ON LIABILITY. 1. IN ANY PERSONAL INJURY ACTION
SUBJECT TO THE PROVISIONS OF THIS SECTION, WHERE THE DETERMINATION AS TO
THE AMOUNT OF DAMAGES TO BE AWARDED TO A SUCCESSFUL PLAINTIFF OR PLAIN-
TIFFS IS DETERMINED BY A JUDGE OR JURY UPON A VERDICT, THE PERSONAL
LIABILITY OF THE ATTENDING PHYSICIAN OR MIDWIFE FOR NON-ECONOMIC DAMAGES
AND ACTUAL ECONOMIC DAMAGES SUFFERED BY THE INJURED PLAINTIFF OR PLAIN-
TIFFS, IN THE AGGREGATE, SHALL NOT EXCEED TWO HUNDRED FIFTY THOUSAND
DOLLARS WHERE THE BOARD OF TRUSTEES OF THE IMPAIRED INFANT COMPENSATION
FUND DETERMINES THAT THE AMOUNT IN EXCESS OF SUCH TWO HUNDRED FIFTY
THOUSAND DOLLARS LIABILITY SHALL BE PAID PURSUANT TO SECTION
EIGHTY-FOUR-B OF THE STATE FINANCE LAW. NO PART OF THE PERSONAL ASSETS
OF ANY PHYSICIAN OR MIDWIFE WHICH EXCEEDS SUCH TWO HUNDRED FIFTY THOU-
SAND DOLLAR LIMITATION SHALL BE SUBJECT TO ANY JUDGMENT RENDERED IN AN
ACTION WHERE THE EXCESS AMOUNT IS PAID BY THE FUND. WHERE THE VERDICT OF
THE JUDGE OR JURY AWARDS DAMAGES IN AN AMOUNT WHICH EXCEEDS TWO HUNDRED
S. 2744 3
FIFTY THOUSAND DOLLARS, AND THE BOARD OF TRUSTEES OF SUCH FUND DETER-
MINES THAT SUCH EXCESS AMOUNT SHALL NOT BE PAYABLE FROM SUCH FUND, THERE
SHALL BE NO LIMIT ON SUCH PHYSICIAN'S OR MIDWIFE'S LIABILITY AND SUCH
VERDICT AS TO DAMAGES SHALL PROCEED FOR ASSESSMENT AND COLLECTION AS
OTHERWISE PROVIDED BY LAW. EXCEPT AS AUTHORIZED IN SECTION SEVEN THOU-
SAND FIVE HUNDRED EIGHTY-THREE OF THIS ARTICLE, NO PART OF ANY AWARD
WHETHER DEEMED PART OF THE PERSONAL LIABILITY OF THE ATTENDING PHYSICIAN
OR MIDWIFE PAID FROM THE IMPAIRED INFANT COMPENSATION FUND SHALL INCLUDE
ANY AMOUNT ATTRIBUTABLE TO MEDICAL CARE, TREATMENT OR SERVICES, INCLUD-
ING CUSTODIAL CARE, WHICH MAY BE REQUIRED TO BE PROVIDED IN THE FUTURE
TO ANY INJURED PLAINTIFF.
2. THE PROVISIONS OF SECTION SEVEN THOUSAND FIVE HUNDRED EIGHTY-THREE
OF THIS ARTICLE SHALL APPLY TO ANY PERSONAL INJURY ACTION WHICH WOULD
OTHERWISE BE SUBJECT TO THE PROVISIONS OF THIS ARTICLE WHERE THE DETER-
MINATION AS TO THE AMOUNT OF DAMAGES TO BE AWARDED IS MADE BY MUTUAL
AGREEMENT OF THE PARTIES OR SETTLEMENT TO THE ACTION AGREED UPON PRIOR
TO THE RENDERING OF A VERDICT BY THE JUDGE OR JURY.
S 7583. SETTLEMENT PROCEEDINGS. 1. THE PROVISIONS OF THIS SECTION
SHALL APPLY TO ANY PERSONAL INJURY ACTION OTHERWISE SUBJECT TO THE
PROVISIONS OF THIS ARTICLE WHERE THE DETERMINATION AS TO THE AMOUNT OF
DAMAGES TO BE AWARDED IS MADE BY MUTUAL AGREEMENT OF THE PARTIES OR
SETTLEMENT TO THE ACTION AGREED UPON AFTER COMMENCEMENT OF THE ACTION
BUT PRIOR TO THE RENDERING OF A VERDICT BY JUDGE OR JURY.
2. IN ANY SUCH ACTION AS PROVIDED FOR IN SUBDIVISION ONE OF THIS
SECTION, PRIOR TO THE RENDERING OF A VERDICT BY A JUDGE OR JURY, THE
PARTIES TO THE ACTION MAY APPLY TO THE BOARD OF TRUSTEES OF THE IMPAIRED
INFANT COMPENSATION FUND AND REQUEST SUCH BOARD TO INTERCEDE AND FULLY
PARTICIPATE IN PROCEEDINGS TO DETERMINE THE AMOUNT OF DAMAGES TO BE
AWARDED BY MUTUAL AGREEMENT OR SETTLEMENT. UPON FILING OF SUCH REQUEST,
THE BOARD SHALL ASSIGN A DESIGNEE TO REPRESENT IT AND SUCH DESIGNEE
SHALL, SUBJECT TO THE APPROVAL OF THE BOARD, BE EMPOWERED TO SO PARTIC-
IPATE AND BE PRESENT AT ALL DISCUSSIONS APPERTAINING TO A SETTLEMENT.
WITH THE AGREEMENT OF ALL THE PARTIES, THE COURT AND THE FUND, THE FUND
MAY AGREE TO PAY A PLAINTIFF OR PLAINTIFFS AN AMOUNT IN THE AGGREGATE
NOT TO EXCEED TWO MILLION FIFTY THOUSAND DOLLARS, OR WITH RESPECT TO A
PROFESSIONAL SERVICES LIMITED LIABILITY COMPANY, A FOREIGN PROFESSIONAL
SERVICES LIMITED LIABILITY COMPANY, A REGISTERED LIMITED LIABILITY PART-
NERSHIP OR A NEW YORK REGISTERED FOREIGN LIMITED LIABILITY PARTNERSHIP
SEVEN HUNDRED FIFTY THOUSAND DOLLARS, ABOVE THE TWO HUNDRED FIFTY THOU-
SAND DOLLAR LIMITATION PROVIDED FOR IN SECTION SEVEN THOUSAND FIVE
HUNDRED EIGHTY-TWO OF THIS ARTICLE FOR THE PURPOSES OF SETTLING SUCH
ACTION AND SUCH SETTLEMENT AMOUNT SHALL INCLUDE ACTUAL ECONOMIC DAMAGES
AND NON-ECONOMIC DAMAGES INCLUDING MEDICAL TREATMENT CARE AND SERVICES
INCLUDING CUSTODIAL CARE WHICH MAY BE REQUIRED TO BE PROVIDED IN THE
FUTURE TO THE INJURED PLAINTIFF AND PROVIDED WHERE THE PLAINTIFF OR
PLAINTIFFS AGREES TO ACCEPT SUCH SETTLEMENT AS OFFERED BY THE PARTIES
AND THE FUND, HE SHALL BE DEEMED TO HAVE WAIVED ANY RIGHTS WHICH WOULD
ACCRUE PURSUANT TO SECTION THREE HUNDRED SIXTY-NINE-NN OF THE SOCIAL
SERVICES LAW, AND UPON EXECUTING SUCH SETTLEMENT AGREEMENT, HE SHALL BE
INELIGIBLE FOR ANY BENEFITS THEREUNDER.
3. WHERE THE FUND MAKES PAYMENT PURSUANT TO THE TERMS OF THE SETTLE-
MENT IN THE AMOUNT AGREED UPON, THE TRUSTEES OF THE FUND SHALL REVIEW
ALL PERTINENT MEDICAL RECORDS, INCLUDING ALL RECORDS, TESTIMONY AND
EVIDENCE RELATING TO THE ACTION TO DETERMINE WHETHER THE NEGLIGENCE OR
MISCONDUCT OF THE ATTENDING PHYSICIAN OR MIDWIFE WAS EGREGIOUS OR GROSS-
LY CONTRARY TO GENERALLY ACCEPTABLE MEDICAL STANDARDS. WHERE THE TRUSTEE
S. 2744 4
MAKES A DETERMINATION THAT AN ATTENDING PHYSICIAN'S OR MIDWIFE'S CONDUCT
WAS EGREGIOUS OR GROSSLY CONTRARY TO ACCEPTABLE MEDICAL STANDARDS, NO
PAYMENT FROM THE FUND FOR FUTURE CAUSES OF ACTION ACCRUING ON OR AFTER
THE DATE OF THE BOARD'S DETERMINATION SHALL THEREAFTER BE MADE EXCEPT AS
PROVIDED FOR IN PARAGRAPH (B) OF SUBDIVISION FOUR OF SECTION
EIGHTY-FOUR-B OF THE STATE FINANCE LAW.
S 7584. INSTRUCTIONS TO JURY. IN ANY JURY TRIAL, PRIOR TO COMMENCING
DELIBERATIONS IN A PERSONAL INJURY ACTION AGAINST AN ATTENDING PHYSICIAN
OR MIDWIFE, THE COURT, UPON THE MOTION OF THE ATTORNEY FOR EITHER THE
PLAINTIFF OR THE DEFENDANT OR UPON ITS OWN INITIATIVE, SHALL MAKE A
DETERMINATION WHETHER THE PROCEEDING IS IN FACT SUBJECT TO THE
PROVISIONS OF SECTION SEVEN THOUSAND FIVE HUNDRED EIGHTY-TWO OF THIS
ARTICLE. IF SO DETERMINED IN THE AFFIRMATIVE, IT SHALL INSTRUCT THE JURY
THAT IN DETERMINING THE AMOUNT OF THE ACTUAL ECONOMIC DAMAGES TO BE
INCLUDED IN SUCH VERDICT, IF ANY, THEY MUST NOT INCLUDE ANY AMOUNT WHICH
WOULD BE ATTRIBUTABLE TO MEDICAL CARE, TREATMENT OR SERVICES, INCLUDING
CUSTODIAL CARE WHICH MAY BE REQUIRED TO BE PROVIDED IN THE FUTURE TO ANY
INJURED PLAINTIFF AND IT SHALL FURTHER INFORM THEM OF THE APPLICATION OF
TITLE ELEVEN-E OF ARTICLE FIVE OF THE SOCIAL SERVICES LAW.
S 2. The state finance law is amended by adding a new section 84-b to
read as follows:
S 84-B. IMPAIRED INFANT COMPENSATION FUND. 1. THERE IS HEREBY ESTAB-
LISHED IN THE CUSTODY OF THE STATE COMPTROLLER A FUND TO BE KNOWN AS THE
IMPAIRED INFANT COMPENSATION FUND.
2. A BOARD OF TRUSTEES AS HEREIN CONSTITUTED SHALL ADMINISTER SUCH
FUND. SUCH BOARD SHALL CONSIST OF NINE MEMBERS APPOINTED BY THE GOVER-
NOR, SIX OF WHOM SHALL BE BOARD CERTIFIED OBSTETRICIAN-GYNECOLOGISTS
LICENSED TO PRACTICE SUCH SPECIALTY IN THIS STATE AND CURRENTLY ENGAGED
IN ACTIVE PRACTICE IN SUCH SPECIALTY AT THE TIME OF THEIR APPOINTMENT.
TWO MEMBERS SHALL BE APPOINTED UPON THE RECOMMENDATION OF THE TEMPORARY
PRESIDENT OF THE SENATE, TWO MEMBERS SHALL BE APPOINTED UPON THE RECOM-
MENDATION OF THE SPEAKER OF THE ASSEMBLY, ONE MEMBER SHALL BE APPOINTED
UPON THE RECOMMENDATION OF THE MINORITY LEADER OF THE SENATE AND ONE
MEMBER SHALL BE APPOINTED UPON THE RECOMMENDATION OF THE MINORITY LEADER
OF THE ASSEMBLY. THREE OF THE MEMBERS APPOINTED BY THE GOVERNOR (NOT
UPON THE RECOMMENDATION OF A LEGISLATIVE LEADER) AND THE MEMBERS
APPOINTED UPON THE RECOMMENDATION OF THE TEMPORARY PRESIDENT OF THE
SENATE AND THE SPEAKER OF THE ASSEMBLY RESPECTIVELY, SHALL BE LICENSED
AND CURRENTLY ENGAGED AS HEREINABOVE PROVIDED. THE GOVERNOR SHALL DESIG-
NATE ONE OF THE MEMBERS OF THE BOARD AS CHAIRPERSON. THE TERM OF OFFICE
OF MEMBERS SHALL BE THREE YEARS, PROVIDED, HOWEVER, THAT OF THE MEMBERS
FIRST APPOINTED, THREE SHALL BE APPOINTED FOR TERMS EXPIRING ON DECEMBER
THIRTY-FIRST, TWO THOUSAND TEN, THREE SHALL BE APPOINTED FOR TERMS
EXPIRING ON DECEMBER THIRTY-FIRST, TWO THOUSAND ELEVEN AND THREE SHALL
BE APPOINTED FOR TERMS EXPIRING ON DECEMBER THIRTY-FIRST, TWO THOUSAND
TWELVE. TWO OF THE THREE MEMBERS WHOSE TERMS EXPIRE ON SUCH DECEMBER
THIRTY-FIRST IN TWO THOUSAND TEN, TWO THOUSAND ELEVEN AND TWO THOUSAND
TWELVE RESPECTIVELY SHALL ALSO BE LICENSED AND ENGAGED AS HEREINABOVE
PROVIDED. VACANCIES SHALL BE FILLED IN THE MANNER OF ORIGINAL APPOINT-
MENT FOR THE REMAINDER OF THE TERM. THE MEMBERS SHALL RECEIVE NO COMPEN-
SATION FOR THEIR SERVICES, BUT SHALL BE ENTITLED TO RECEIVE THEIR ACTUAL
AND NECESSARY EXPENSES INCURRED IN THE PERFORMANCE OF THEIR DUTIES.
3. THE FUND SHALL CONSIST OF ALL MONEYS APPROPRIATED OR TRANSFERRED
THERETO BY LAW, ALL MONEYS ASSESSED OR COLLECTED AS PROVIDED BY LAW AND
MADE AVAILABLE TO THE FUND, AND ANY OTHER MONEYS, GIFTS OR BEQUESTS
DEPOSITED INTO THE FUND. NO PHYSICIAN, REGARDLESS OF MEDICAL SPECIALTY,
S. 2744 5
LICENSED TO PRACTICE IN THIS STATE NOR ANY MIDWIFE LICENSED TO PRACTICE
IN THIS STATE SHALL BE REQUIRED TO PAY ANY FEE, ASSESSMENT, SURCHARGE,
TAX OR OTHER OBLIGATION HOWEVER IDENTIFIED AS A MEANS OF PROVIDING A
SOURCE OF REVENUE FOR SUCH FUND.
4.(A) IN ANY PERSONAL INJURY ACTION AGAINST AN ATTENDING PHYSICIAN OR
A MIDWIFE SUBJECT TO THE PROVISIONS OF ARTICLE SEVENTY-FIVE-B OF THE
CIVIL PRACTICE LAW AND RULES, THE REASONABLENESS OF THE AMOUNT OF ANY
VERDICT RENDERED AGAINST AN ATTENDING PHYSICIAN OR A MIDWIFE SHALL BE
SUBJECT TO AUTOMATIC APPEAL TO THE APPELLATE DIVISION OF THE SUPREME
COURT IN THE DEPARTMENT WHEREIN THE UNDERLYING VERDICT WAS RENDERED.
WHERE, AFTER APPEAL, THE AMOUNT OF DAMAGES TO BE AWARDED TO THE PLAIN-
TIFF OR PLAINTIFFS AS DETERMINED BY A JUDGE OR JURY, AND AFTER REVIEW BY
THE APPELLATE DIVISION, IS DETERMINED TO BE GREATER THAN TWO HUNDRED
FIFTY THOUSAND DOLLARS, THE APPELLATE DIVISION SHALL NOTIFY THE CHAIR-
PERSON OF THE FUND OF THE AMOUNT OF SUCH VERDICT WITHIN FIVE DAYS AFTER
IT IS RENDERED. TOGETHER WITH SUCH NOTIFICATION, THE COURT SHALL PROVIDE
THE BOARD WITH A TRANSCRIPT OF THE TRIAL TESTIMONY AND ANY EVIDENCE
PRESENTED AT THE TRIAL. WITHIN THIRTY DAYS AFTER SUCH NOTIFICATION, THE
BOARD SHALL PAY THE AMOUNT IN EXCESS OF TWO HUNDRED FIFTY THOUSAND
DOLLARS TO THE SUCCESSFUL PLAINTIFF OR PLAINTIFFS. WHERE HOWEVER, UPON
REVIEW OF THE TRANSCRIPT AND EVIDENCE SO SUBMITTED, THE BOARD DETERMINES
THAT THE NEGLIGENCE OR MISCONDUCT OF THE ATTENDING PHYSICIAN OR MIDWIFE
WAS SO EGREGIOUS OR GROSSLY CONTRARY TO GENERALLY ACCEPTABLE MEDICAL
STANDARDS OF CARE, NO PAYMENT FROM THE FUND FOR FUTURE CAUSES OF ACTION
ACCRUING ON AND AFTER THE DATE OF THE BOARD'S DETERMINATION SHALL BE
MADE, EXCEPT AS PROVIDED FOR IN PARAGRAPH (B) OF THIS SUBDIVISION. WHERE
PAYMENT FROM THE FUND IS DENIED FOR ANY SUCH FUTURE CAUSE OF ACTION
BECAUSE OF THE BOARD'S DETERMINATION IN A PRIOR CAUSE OF ACTION THAT AN
ATTENDING PHYSICIAN'S OR MIDWIFE'S CONDUCT WAS SO EGREGIOUS OR GROSSLY
CONTRARY TO GENERALLY ACCEPTABLE MEDICAL STANDARDS OF CARE, THE PLAIN-
TIFF OR PLAINTIFF'S VERDICT AS RENDERED BY THE JUDGE OR JURY SHALL
STAND, AND SHALL BE SUBJECT TO ASSESSMENT AND COLLECTION PROCEDURES AS
OTHERWISE APPLICABLE TO JUDGMENTS RENDERED IN ACCORDANCE WITH ALL OTHER
APPROPRIATE PROVISIONS OF LAW.
(B) WHERE, AS PROVIDED FOR IN PARAGRAPH (A) OF THIS SUBDIVISION OR IN
THE COURSE OF PARTICIPATING IN A SETTLEMENT PROCEEDING AS PROVIDED FOR
IN SECTION SEVEN THOUSAND FIVE HUNDRED EIGHTY-THREE OF THE CIVIL PRAC-
TICE LAW AND RULES, THE BOARD HAS MADE A DETERMINATION THAT AN ATTENDING
PHYSICIAN'S OR MIDWIFE'S CONDUCT WAS SO EGREGIOUS OR GROSSLY CONTRARY TO
ACCEPTABLE MEDICAL STANDARDS, SUCH ATTENDING PHYSICIAN OR MIDWIFE SHALL
BE THEREAFTER PERMANENTLY BARRED FROM PARTICIPATING IN THE BENEFITS OF
THE FUND FOR ANY CAUSE OF ACTION OCCURRING ON OR AFTER THE DATE SUCH
DECISION TO DENY PAYMENT IS RENDERED. HOWEVER, ON OR AFTER THE DATE
OCCURRING FIVE YEARS AFTER THE DATE SUCH DECISION IS RENDERED AN ATTEND-
ING PHYSICIAN OR MIDWIFE MAY APPLY TO THE BOARD FOR A CERTIFICATE OF
REINSTATEMENT WHICH, IF GRANTED SHALL PERMIT THE ATTENDING PHYSICIAN OR
MIDWIFE TO RESUME PARTICIPATION IN THE BENEFITS ACCORDED BY THE FUND.
SUCH CERTIFICATE SHALL BE GRANTED BY THE BOARD ONLY WHERE IT DETERMINES
THAT AFTER A REVIEW AND ASSESSMENT OF SUCH ATTENDING PHYSICIAN'S OR
MIDWIFE'S PROFESSIONAL CONDUCT AND HIS OR HER DEMONSTRATED PROFICIENCY
IN THE PROVISION OF MEDICAL SERVICES DURING SUCH PERIOD AFTER DISQUALI-
FICATION AND PRIOR TO THE DATE OF REAPPLICATION, REINSTATEMENT IS
WARRANTED.
5. WHERE, IN ANY PERSONAL INJURY ACTION AGAINST AN ATTENDING PHYSICIAN
OR MIDWIFE WHICH HAS BEEN REFERRED TO THE BOARD, ANY PARTY HAS APPEALED
THE VERDICT RENDERED BY THE TRIAL COURT, UPON NOTIFICATION OF THE FILING
S. 2744 6
OF SUCH APPEAL BY THE COURT, THE ACTIONS OF THE BOARD SHALL BE STAYED
PENDING THE DETERMINATION OF THE APPELLATE COURT. WHEN ALL APPEALS HAVE
BEEN EXHAUSTED, THE BOARD SHALL THEN COMMENCE AND MAKE ITS DETERMINATION
AS PROVIDED FOR IN THIS SECTION.
6. ALL PAYMENTS FROM THE FUND SHALL BE MADE ON THE AUDIT AND WARRANT
OF THE STATE COMPTROLLER, ON VOUCHERS CERTIFIED OR APPROVED IN THE
MANNER PROVIDED BY LAW WITHIN THIRTY DAYS OF THE DETERMINATION OF THE
BOARD, A COPY OF WHICH DETERMINATION SHALL BE TRANSMITTED TO THE COURT
OF RECORD, ALL OF THE PARTIES TO THE ACTION, AND THEIR ATTORNEYS.
7. EXCEPT AS PROVIDED FOR IN PARAGRAPH (A) OF SUBDIVISION FOUR OF THIS
SECTION, THE DECISION OF THE BOARD SHALL BE FINAL AND SHALL NOT BE
SUBJECT TO FURTHER ADMINISTRATIVE REVIEW OR APPEAL. PAYMENT OF THE
INITIAL TWO HUNDRED FIFTY THOUSAND DOLLARS BY, OR ON BEHALF OF, THE
ATTENDING PHYSICIAN OR MIDWIFE AND SUCH EXCESS AMOUNT FROM SUCH FUND
SHALL CONSTITUTE A FULL SATISFACTION OF SUCH JURY'S VERDICT AND SHALL
DISCHARGE THE DEFENDANT FROM ANY FURTHER CLAIM FOR DAMAGES IN SUCH
ACTION. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, NO OTHER DEFENDANT
IN A PERSONAL INJURY ACTION AGAINST AN ATTENDING PHYSICIAN OR A MIDWIFE
SHALL BE JOINTLY AND SEVERALLY LIABLE FOR ANY AMOUNT OF A VERDICT WHICH
WOULD OTHERWISE BE ASSESSABLE AGAINST HIM WHERE PAYMENTS HAVE BEEN MADE
FROM THE FUND IN SUCH AN ACTION.
S 3. Article 5 of the social services law is amended by adding a new
title 11-E to read as follows:
TITLE 11-E
MEDICAL EXPENSES OF CERTAIN INFANTS
SECTION 369-LL. DEFINITIONS.
369-MM. ESTABLISHMENT OF PROGRAM.
369-NN. PROGRAM ELIGIBILITY AND OPERATIONS.
369-OO. RELATIONSHIP OF PROGRAM TO MEDICAL ASSISTANCE PROGRAM.
S 369-LL. DEFINITIONS. AS USED IN THIS SECTION:
1. "IMPAIRED INFANT" SHALL MEAN A PERSON, WHO IS INJURED AS A RESULT
OF THE NEGLIGENCE OR OTHER MISCONDUCT OF AN ATTENDING PHYSICIAN OR
MIDWIFE AND WHO HAS BEEN AWARDED DAMAGES IN AN ACTION WHICH WAS DETER-
MINED TO BE SUBJECT TO THE PROVISIONS OF SECTION SEVEN THOUSAND FIVE
HUNDRED EIGHTY-TWO OF THE CIVIL PRACTICE LAW AND RULES.
2. "MEDICAL AND OTHER RELATED COSTS" MEANS ANY COSTS INCURRED IN
PROVIDING MEDICAL SERVICES AND ANY APPROPRIATE CUSTODIAL CARE TO AN
IMPAIRED INFANT DURING HIS OR HER LIFETIME.
3. "PROGRAM" MEANS THE MEDICAL CARE AND ASSISTANCE PROGRAM FOR
IMPAIRED INFANTS AS ESTABLISHED IN SECTION THREE HUNDRED SIXTY-NINE-MM
OF THIS TITLE.
S 369-MM. ESTABLISHMENT OF PROGRAM. 1. THERE IS HEREBY ESTABLISHED
WITHIN THE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE THE MEDICAL
CARE AND ASSISTANCE PROGRAM FOR IMPAIRED INFANTS.
2. NOTWITHSTANDING ANY INCONSISTENT PROVISION OF LAW, THE COMMISSIONER
OF SUCH OFFICE, SUBJECT TO THE APPROVAL OF THE DIRECTOR OF THE BUDGET,
MAY APPLY FOR APPROPRIATE WAIVERS UNDER FEDERAL LAW AND REGULATION IF
NECESSARY OR TAKE OTHER ACTIONS AS MAY BE REQUIRED TO SECURE FEDERAL
FINANCIAL PARTICIPATION IN THE COSTS OF THE PROGRAM; MAY WAIVE OR MODIFY
ANY PROVISIONS OF THIS CHAPTER OR REGULATION TO IMPLEMENT THIS TITLE; OR
MAY PROMULGATE SUCH REGULATIONS AS NECESSARY TO IMPLEMENT THIS TITLE.
S 369-NN. PROGRAM ELIGIBILITY AND OPERATIONS. 1. IN ACCORDANCE WITH
REGULATIONS OF THE COMMISSIONER, A LOCAL SOCIAL SERVICES DISTRICT SHALL
PAY ALL OF THE MEDICAL AND OTHER RELATED COSTS, INCURRED ON BEHALF OF,
OR IN CONNECTION WITH THE SUPPORT OF, AN IMPAIRED INFANT DURING THE
ENTIRETY OF SUCH INFANT'S LIFETIME.
S. 2744 7
2. FOR PURPOSES OF DETERMINING ELIGIBILITY UNDER THIS TITLE, ANY
RESOURCES AVAILABLE TO SUCH INFANT, OR SUCH INFANT'S HOUSEHOLD SHALL NOT
BE CONSIDERED NOR REQUIRED TO BE APPLIED TO THE PAYMENT OF SUCH MEDICAL
AND OTHER RELATED COSTS.
S 369-OO. RELATIONSHIP OF PROGRAM TO MEDICAL ASSISTANCE PROGRAM.
NOTWITHSTANDING ANY INCONSISTENT PROVISION OF LAW, EXPENDITURES INCURRED
BY LOCAL SOCIAL SERVICES DISTRICTS UNDER THIS TITLE RELATED TO PROGRAM
EXPENSES SHALL BE CONSIDERED EXPENDITURES UNDER THE PROGRAM OF MEDICAL
ASSISTANCE FOR NEEDY PERSONS UNDER TITLE ELEVEN OF THIS ARTICLE AND
THERE SHALL BE PAID TO EACH SUCH DISTRICT FIFTY PERCENT OF THE AMOUNT
EXPENDED BY SUCH DISTRICT UNDER THIS TITLE, AND FOR THE ADMINISTRATION
THEREOF, AFTER FIRST DEDUCTING THEREFROM ANY FEDERAL FUNDS PROPERLY
RECEIVED OR TO BE RECEIVED ON ACCOUNT THEREOF.
S 4. Paragraph (e) of subdivision 1 of section 2995-a of the public
health law is amended by adding a new subparagraph (iv) to read as
follows:
(IV) A STATEMENT INDICATING WHETHER A PHYSICIAN OR MIDWIFE HAS BEEN
DISQUALIFIED AND IS INELIGIBLE FOR THE BENEFITS OF PARTICIPATING IN THE
IMPAIRED INFANT COMPENSATION FUND PROGRAM ESTABLISHED IN SECTION EIGHT-
Y-FOUR-B OF THE STATE FINANCE LAW, AS A RESULT OF CONDUCT DEEMED EGRE-
GIOUS OR GROSSLY CONTRARY TO GENERALLY ACCEPTABLE MEDICAL STANDARDS;
S 5. Section 230 of the public health law is amended by adding a new
subdivision 10-a to read as follows:
10-A. SPECIAL PROVISIONS RELATING TO EXPERT WITNESSES. IN CASES OF
MEDICAL MISCONDUCT BASED UPON AN ALLEGATION THAT THE TESTIMONY GIVEN BY
A PERSON WHO TESTIFIES AS AN EXPERT WITNESS FAILS TO MEET PROFESSIONAL
CLINICAL STANDARDS ACCEPTABLE TO THE OFFICE, THE OFFICE, IN ADDITION TO
ANY OTHER PENALTY OR SANCTION OTHERWISE PERMITTED, MAY IMPOSE A CIVIL
PENALTY OF NOT LESS THAN FIFTY THOUSAND DOLLARS AGAINST THE WITNESS, OR
SUSPEND OR PERMANENTLY REVOKE SUCH WITNESS' LICENSE TO PRACTICE IN THIS
STATE. SUCH A PROCEEDING SHALL BE GIVEN PRIORITY BY THE BOARD, AND THE
BOARD SHALL RENDER A DECISION WITHIN NINETY DAYS AFTER A COMPLAINT HAS
BEEN RECEIVED.
S 6. Severability. If any clause, sentence, paragraph, subdivision or
part of this act, or the application thereof to any person or circum-
stance, shall be adjudged by any court of competent jurisdiction to be
invalid or unconstitutional, such judgment shall not affect, impair or
invalidate the remainder thereof, but shall be confined in its operation
to the clause, sentence, paragraph, subdivision or part of this act, or
in its application to the person or circumstance, directly involved in
the controversy in which such judgment shall have been rendered.
S 7. This act shall take effect immediately and shall apply to any
cause of action which (i) has accrued prior to such date for which a
verdict has not yet been rendered, or (ii) accrues on or after such
date.