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

                                  1360

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  M.  of  A.  HAWLEY,  CALHOUN,  McDONOUGH,  OAKS, CROUCH,
  J. MILLER, TOBACCO, KOLB, FINCH -- Multi-Sponsored  by  --  M.  of  A.
  CORWIN, GIGLIO -- read once and referred to the Committee on Codes

AN  ACT to amend the civil practice law and rules and the judiciary law,
  in relation to dental, medical and podiatric malpractice  actions  and
  to establishing a limitation on noneconomic damages in personal injury
  actions

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. 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 AND ACTIONS AGAINST ALL OTHER PROFESSIONALS. (a) In any
action  for medical, dental or podiatric malpractice, OR IN  ANY  ACTION
FOR DAMAGES, CONTRIBUTION OR INDEMNITY ARISING OUT OF ALLEGED NEGLIGENCE
OF  A PROFESSIONAL SUBJECT TO THE PROVISIONS OF TITLE VIII OF THE EDUCA-
TION LAW, the complaint shall be accompanied by a certificate,  executed
by the  attorney  for  the plaintiff, OR OTHER PARTY ASSERTING THE CAUSE
OF ACTION, 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, OR AT LEAST ONE PROFESSIONAL IN THE SAME
PROFESSION AS THE PERSON OR PERSONS DEFENDANT IN  THE  SUBJECT  SUIT  IN
OTHER PROFESSIONAL MALPRACTICE OR NEGLIGENCE ACTIONS AND who is licensed
to  practice  in  this  state  or  any  other state and who the attorney
reasonably believes is knowledgeable 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, SUCH

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

                                                           LBD03344-01-1

A. 1360                             2

AFFIDAVIT SHALL 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
  (2)  the  attorney  was  unable to obtain the consultation AND AFFIDA-
VIT 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   certificate   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 OR SUBJECT PROFESSIONALS, in accordance  with
the  provisions  of  paragraph  one  of  this subdivision to obtain such
consultation AND AFFIDAVIT and none of those contacted  would  agree  to
such a consultation AND AFFIDAVIT.
  (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 OR SUBJECT
PROFESSIONALS with whom the attorney consulted shall not be required  to
disclose  the  identity  of  the  physician, dentist [or], podiatrist OR
SUBJECT PROFESSIONALS consulted and the contents  of  such  consultation
AND  AFFIDAVIT;  provided, however, that when the attorney makes a claim
under paragraph three of subdivision (a) of this  section  that  he  was
unable to obtain the required consultation AND AFFIDAVIT with the physi-
cian,  dentist [or], podiatrist OR SUBJECT PROFESSIONALS, the court may,
upon the request of a defendant made prior to compliance by  the  plain-
tiff with the provisions of section thirty-one hundred ONE of this chap-
ter,  require  the  attorney to divulge to the court the names of physi-
cians, dentists [or], podiatrists OR SUBJECT PROFESSIONALS refusing such
consultation AND AFFIDAVIT.
  (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 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.

A. 1360                             3

  (H) THE SUBJECT PROFESSIONAL OR PROFESSIONALS CONSULTED MAY NOT  BE  A
PARTY TO THE LITIGATION.
  (I)  FOR   PURPOSES   OF   THIS  SECTION,  A COMPLAINT SHALL INCLUDE A
COMPLAINT, THIRD PARTY COMPLAINT, AN ANSWER CONTAINING A COUNTERCLAIM OR
A CROSS CLAIM.
  S 2. Paragraph 1 of subdivision (d) of section 3101 of the civil prac-
tice law and rules, as amended by chapter  184  of  the  laws  of  1988,
subparagraph  (ii)  as  amended  by  chapter 165 of the laws of 1991, is
amended to read as follows:
  1. Experts. (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 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  intro-
ducing  the expert's testimony at the trial solely on grounds of noncom-
pliance 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 podia-
tric 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  information  concerning  such  experts   otherwise
required by this paragraph.]
  (ii)  In  an  action for medical, dental or podiatric malpractice, any
party may, by written offer made to and served upon  all  other  parties
and  filed  with the court, [offer to disclose the name of, and to] make
available for examination upon oral deposition,  any  person  the  party
making  the  offer expects to call as an expert witness at trial. Within
twenty days of service of the offer, a party shall accept or reject  the
offer  by  serving  a  written  reply upon all parties and filing a copy
thereof with the court.  Failure to serve a reply within twenty days  of
service  of  the  offer shall be deemed a rejection of the offer. If all
parties accept the offer, each party shall be required to produce his or
her expert witness for examination upon oral deposition upon receipt  of
a  notice  to  take  oral  deposition in accordance with rule thirty-one
hundred seven of this [chapter] ARTICLE.  If any party, having  made  or
accepted the offer, fails to make that party's expert available for oral
deposition, that party shall be precluded from offering expert testimony
at the trial of the action.
  (iii)  Further  disclosure  concerning  the  expected testimony of any
expert may be obtained only by court order upon  a  showing  of  special
circumstances  and  subject  to  restrictions as to scope and provisions
concerning fees and expenses as the court may deem appropriate. However,
a party, without court order, may take the testimony of a person author-
ized to practice medicine, dentistry or  podiatry  who  is  the  party's
treating or retained expert, as described in paragraph three of subdivi-
sion  (a) of this section, in which event any other party shall be enti-
tled to the full disclosure authorized by this article with  respect  to
that expert without court order.
  S  3.  Subdivisions  (b) and (c) of section 5031 of the civil practice
law and rules, as added by chapter 86 of the laws of 2003,  are  amended
to read as follows:

A. 1360                             4

  (b)  Awards  for  all  past  damages,  all  damages for future loss of
services, all damages for future loss  of  consortium,  all  damages  in
wrongful  death  actions,  and  damages for future pain and suffering of
[five hundred] FIFTY thousand dollars or less shall be paid  in  a  lump
sum.  In  any case in which all damages are to be paid in lump sums, the
judgment shall be entered on the total of the lump sums, without further
regard to this section.
  (c) As to any award of damages for future pain and suffering in excess
of [five hundred] FIFTY thousand dollars, the court shall determine  the
greater  of  thirty-five percent of such damages or [five hundred] FIFTY
thousand dollars and such amount shall  be  paid  in  a  lump  sum.  The
remaining  amount of the award for damages for future pain and suffering
shall be paid in a stream of payments over the period of time determined
by the trier of fact or eight years, whichever is less.  The  stream  of
payments  for  future pain and suffering shall be calculated by dividing
the remaining amount of damages for future pain  and  suffering  by  the
number  of years over which such payments shall be made to determine the
first year's payment and the payment due in each succeeding  year  shall
be  computed  by adding four percent to the previous year's payment. The
court shall determine the present value of the  stream  of  payments  by
applying a discount rate to the stream of payments.
  S  4.  Subdivisions  (b) and (e) of section 5041 of the civil practice
law and rules, as added by chapter 682 of the laws of 1986, are  amended
to read as follows:
  (b)  The  court shall enter judgment in lump sum for past damages, for
future damages not in excess of [two hundred]  fifty  thousand  dollars,
and  for  any  damages,  fees  or costs payable in lump sum or otherwise
under subdivisions (c) and (d) of this section. For the purposes of this
section, any lump sum payment of a portion of future  damages  shall  be
deemed  to include the elements of future damages in the same proportion
as such elements comprise of the  total  award  for  future  damages  as
determined by the trier of fact.
  (e)  With  respect  to  awards  of  future  damages  in excess of [two
hundred] fifty thousand dollars in an  action  to  recover  damages  for
personal  injury,  injury to property or wrongful death, the court shall
enter judgment as follows:
  After making any adjustment prescribed by subdivisions  (b),  (c)  and
(d)  of this section, the court shall enter a judgment for the amount of
the present value of an annuity  contract  that  will  provide  for  the
payment  of the remaining amounts of future damages in periodic install-
ments. The present value of such contract shall be determined in accord-
ance  with  generally  accepted  actuarial  practices  by  applying  the
discount  rate  in effect at the time of the award to the full amount of
the remaining future damages, as calculated pursuant  to  this  subdivi-
sion. The period of time over which such periodic payments shall be made
and the period of time used to calculate the present value of the annui-
ty contract shall be the period of years determined by the trier of fact
in  arriving at the itemized verdict; provided, however, that the period
of time over which such periodic payments shall be made and  the  period
of  time used to calculate the present value for damages attributable to
pain and suffering shall be ten years or the period of  time  determined
by the trier of fact, whichever is less. The court, as part of its judg-
ment,  shall  direct  that  the  defendants and their insurance carriers
shall be required to offer and to guarantee the purchase and payment  of
such  an  annuity contract.  Such annuity contract shall provide for the
payment of the annual payments of such remaining future damages over the

A. 1360                             5

period of time determined  pursuant  to  this  subdivision.  The  annual
payment for the first year shall be calculated by dividing the remaining
amount of future damages by the number of years over which such payments
shall  be  made  and  the  payment  due in each succeeding year shall be
computed by adding four percent to  the  previous  year's  payment.  THE
ADDITION OF FOUR PERCENT TO EACH OF THE PREVIOUS YEAR'S PAYMENT SHALL BE
THE EXCLUSIVE MEASURE OF INTEREST, INFLATION, FOREGONE INVESTMENT OPPOR-
TUNITY  AND  ANY  OTHER MEASURE OF DAMAGE. Where payment of a portion of
the future damages terminates in accordance with the provisions of  this
article,  the  four  percent added payment shall be based only upon that
portion of the  damages  that  remains  subject  to  continued  payment.
Unless  otherwise  agreed, the annual sum so arrived at shall be paid in
equal monthly installments and in advance.
  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
        5051. DEFINITIONS.
        5052. DAMAGE AWARDS.
  S 5051. DEFINITIONS. AS USED IN THIS ARTICLE:
  1. "NONECONOMIC DAMAGES" MEANS SUBJECTIVE, NONPECUNIARY DAMAGES  ARIS-
ING  FROM PAIN, SUFFERING, INCONVENIENCE, PHYSICAL IMPAIRMENT OR DISFIG-
UREMENT, MENTAL ANGUISH, EMOTIONAL DISTRESS, LOSS OF SOCIETY AND COMPAN-
IONSHIP, LOSS OF CONSORTIUM, INJURY TO REPUTATION, HUMILIATION AND 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, COSTS OF
REPAIR OR REPLACEMENT OF PROPERTY, COSTS OF OBTAINING SUBSTITUTE  DOMES-
TIC  SERVICES, LOSS OF EMPLOYMENT, LOSS OF BUSINESS OR EMPLOYMENT OPPOR-
TUNITIES, REHABILITATION SERVICES, CUSTODIAL CARE  AND  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. IN ANY PERSONAL INJURY ACTION,  THE  PREVAILING
PLAINTIFF MAY BE AWARDED:
  1.  COMPENSATION  FOR  ACTUAL ECONOMIC DAMAGES SUFFERED BY THE INJURED
PLAINTIFF; AND
  2. COMPENSATION FOR NONECONOMIC DAMAGES SUFFERED BY THE INJURED PLAIN-
TIFF, NOT TO EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS.
  S 6. Section 474-a of the judiciary law, as amended by chapter 485  of
the laws of 1986, is amended to read as follows:
  S  474-a.  Contingent  fees  for  attorneys  in  claims or actions for
medical, dental or podiatric malpractice, OR IN ANY CLAIM OR ACTION  FOR
PROPERTY DAMAGE OR PERSONAL INJURY, INCLUDING DEATH.  1. For the purpose
of this section, the term "contingent fee" shall mean any attorney's fee
in  any claim or action for medical, dental or podiatric malpractice, OR
IN ANY CLAIM OR ACTION FOR PROPERTY DAMAGE OR PERSONAL INJURY, INCLUDING
DEATH, whether determined by judgment or settlement, which is  dependent
in  whole or in part upon the success of the prosecution by the attorney
of such claim or action, or which is to consist of a percentage  of  any
recovery,  or a sum equal to a percentage of any recovery, in such claim
or action.

A. 1360                             6

  2. Notwithstanding any inconsistent judicial rule, a contingent fee in
a medical, dental or podiatric malpractice action, OR IN  ANY  CLAIM  OR
ACTION  FOR  PROPERTY  DAMAGE OR PERSONAL INJURY, INCLUDING DEATH, shall
not exceed the amount of compensation  provided  for  in  the  following
schedule:
  [30] 25 percent of the first $250,000 of the sum recovered;
  [25] 20 percent of the next $250,000 of the sum recovered;
  [20] 15 percent of the next $500,000 of the sum recovered;
  [15] 10 percent of the next $250,000 of the sum recovered;
  [10] 5 percent of any amount over $1,250,000 of the sum recovered.
  3.  Such  percentages shall be computed on the net sum recovered after
deducting from the  amount  recovered  expenses  and  disbursements  for
expert testimony and investigative or other services properly chargeable
to the enforcement of the claim or prosecution of the action. In comput-
ing  the  fee,  the  costs as taxed, including interest upon a judgment,
shall be deemed part of the amount recovered. For the following or simi-
lar items there  shall be no deduction in  computing  such  percentages:
liens,  assignments  or  claims in favor of hospitals, for medical care,
dental care, podiatric care and treatment by doctors and nurses,  or  of
self-insurers or insurance carriers.
  4.  In  the  event that claimant's or plaintiff's attorney believes in
good faith that the fee schedule set forth in subdivision  two  of  this
section,  because    of  extraordinary  circumstances, will not give him
adequate compensation, application for greater compensation may be  made
upon affidavit with written notice and an opportunity to be heard to the
claimant  or plaintiff and other persons holding liens or assignments on
the recovery. Such application shall be made to the justice of the trial
part to which the action had been sent for trial; or, if it had not been
sent to a part for trial, then to the justice  presiding  at  the  trial
term calendar part of the court in which the action had been instituted;
or,  if  no action had been instituted, then to the justice presiding at
the trial term calendar part of the Supreme Court for the county in  the
judicial  department  in  which  the  attorney  has an office. Upon such
application, the justice, in his discretion,  if  extraordinary  circum-
stances are found to be present, and without regard to the claimant's or
plaintiff's  consent,  may  fix  as  reasonable  compensation  for legal
services rendered an amount greater than that specified in the  schedule
set  forth  in  subdivision two of this section, provided, however, that
such greater amount shall not exceed  the  fee  fixed  pursuant  to  the
contractual  arrangement,  if any, between the claimant or plaintiff and
the attorney. If the application is granted, the justice  shall  make  a
written  order accordingly, briefly stating the reasons for granting the
greater compensation; and a copy of such order shall be  served  on  all
persons entitled to receive notice of the application.
  5.  Any  contingent  fee  in  a claim or action for medical, dental or
podiatric malpractice, OR IN ANY CLAIM OR ACTION FOR PROPERTY DAMAGE  OR
PERSONAL  INJURY,  INCLUDING DEATH, brought on behalf of an infant shall
continue to be subject to the provisions of section four hundred  seven-
ty-four of this [chapter] ARTICLE.
  S 7. This act shall take effect immediately, provided, however, that:
  (a) The amendments effected by the provisions of sections one and five
of  this  act shall apply to subject actions commenced on and after such
date; and
  (b) The amendments effected by the provisions of section six  of  this
act shall apply to retainer agreements executed on or after such date.