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

                                  3437

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 22, 2011
                               ___________

Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the civil practice law and rules, in relation to  estab-
  lishing the health care courts pilot program

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

  Section 1. The civil practice law and rules is amended by adding a new
article 44-A to read as follows:
                              ARTICLE 44-A
                    HEALTH CARE COURTS PILOT PROGRAM
SECTION 4410. CREATION.
        4411. HEALTH CARE COURT JUDGES; SELECTION.
        4412. JUDICIAL TRAINING.
        4413. COURT APPOINTED MEDICAL EXPERTS.
        4414. PROCEDURE.
        4415. APPELLATE REVIEW.
        4416. REPORTS.
        4417. DISCLAIMER.
  S 4410. CREATION. THE OFFICE OF COURT ADMINISTRATION MAY SELECT UP  TO
FIVE  COUNTIES,  EACH WITHIN A SEPARATE JUDICIAL DISTRICT IN THIS STATE,
TO ESTABLISH SPECIALIZED HEALTH CARE COURTS WITHIN THE SUPREME COURT  OF
SUCH COUNTIES TO GOVERN CLAIMS FOR MEDICAL, DENTAL OR PODIATRIC MALPRAC-
TICE AS SET FORTH IN THIS SECTION. ONCE A SUPREME COURT WITHIN A PARTIC-
ULAR  COUNTY  HAS  ESTABLISHED A HEALTH CARE COURT AS SET FORTH  IN THIS
SECTION, SUCH COURT SHALL  HAVE  EXCLUSIVE  JURISDICTION  OVER  ALL  THE
CLAIMS  FOR  MEDIAL,  DENTAL OR PODIATRIC MALPRACTICE BROUGHT WITHIN THE
SUPREME COURT OF SUCH COUNTY.
  S 4411. HEALTH CARE COURT JUDGES; SELECTION. JUDGES SHALL BE  SELECTED
TO  SERVE  IN THE HEALTH CARE COURT DIVISION FROM AMONG THOSE JUDGES WHO
ARE ELECTED OR APPOINTED TO THE SUPREME COURT IN A  COUNTY  SELECTED  TO

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09491-01-1

              

S. 3437                             2

PARTICIPATE IN THE HEALTH CARE COURTS PILOT PROGRAM. FOR THE PURPOSES OF
THIS ARTICLE, "JUDGE" SHALL MEAN A JUDGE OF THE HEALTH CARE DIVISION.
  S  4412. JUDICIAL TRAINING. (A) UPON SELECTION OF A PARTICULAR SUPREME
COURT JUDGE TO HEAR CASES IN THE COUNTY'S HEALTH CARE COURT AND PRIOR TO
HEARING SUCH CASES,  EACH  JUDGE  SHALL  COMPLETE  A  JUDICIAL  TRAINING
PROGRAM  ON  THE  LAW  AND SCIENCE OF MEDICINE THAT MAY BE THE BASIS FOR
CASES FALLING UNDER THE JURISDICTION OF  THE  HEALTH  CARE  COURT.  SUCH
PROGRAM SHALL BE ADMINISTERED BY THE OFFICE OF COURT ADMINISTRATION.
  (B)  A  COMMITTEE  SHALL  BE  CREATED TO DEVELOP THE CURRICULUM OF THE
JUDICIAL TRAINING PROGRAM. A TASK FORCE  SHALL  BE  COORDINATED  BY  THE
OFFICE  OF  COURT  ADMINISTRATION AND SHALL INCLUDE EQUAL REPRESENTATION
FROM THE MEDICAL SOCIETY OF THE STATE OF NEW YORK AND THE NEW YORK STATE
BAR ASSOCIATION.
  (C) THE CURRICULUM TO BE CREATED PURSUANT TO SUBDIVISION (B)  OF  THIS
SECTION SHALL INCLUDE BOTH IN-CLASSROOM CLINICAL TRAINING AND AN INTERN-
SHIP.  THE  IN-CLASSROOM  CLINICAL TRAINING SHALL INCLUDE AT THE MINIMUM
THE FOLLOWING: AN OVERVIEW OF  THE  MAJOR  BODY  SYSTEMS,  PHARMACOLOGY,
COMMON DISEASE PATHOLOGY, ALTERNATIVE MEDICINE THERAPIES, AND THE EDUCA-
TION AND TRAINING REQUIRED FOR VARIOUS HEALTH PROFESSIONALS. THE INTERN-
SHIP  SHALL  PROVIDE JUDGES AN OPPORTUNITY TO FOLLOW A PRACTICING PHYSI-
CIAN AND OTHER  HEALTH  CARE  PROFESSIONALS  IN  DIFFERENT  HEALTH  CARE
SETTINGS.  THE TRAINING PROGRAM MAY ALSO INCLUDE A LEGAL COMPONENT WHICH
SHALL INCLUDE A REVIEW OF MEDICAL LEGAL ISSUES THAT MAY BE THE BASIS  OF
CASES FALLING UNDER THE JURISDICTION OF THE HEALTH CARE COURT.
  S  4413.  COURT  APPOINTED MEDICAL EXPERTS.  (A) THE HEALTH CARE COURT
SHALL MAINTAIN A LIST OF QUALIFIED MEDICAL EXPERTS WHO MAY  BE  UTILIZED
BY  THE  COURT TO PROVIDE INDEPENDENT EXPERT OPINIONS TO THE JUDGE. SUCH
EXPERTS MAY PROVIDE OPINIONS IN WRITING TO THE JUDGE OR MAY BE CALLED BY
THE JUDGE TO TESTIFY BEFORE THE COURT TO CLARIFY  OR  INTERPRET  MEDICAL
TESTIMONY OR EVIDENCE, OR FOR ANY OTHER PURPOSE THE JUDGE DEEMS RELEVANT
TO THE PROCEEDINGS.
  (B)  A  COURT APPOINTED MEDICAL EXPERT MUST MEET THE FOLLOWING MINIMUM
EXPERT WITNESS REQUIREMENTS:
  (1) HOLDS AN ACTIVE LICENSE IN THE SAME PROFESSION AS  THE  DEFENDANT.
IF  THE  DEFENDANT  IS A LICENSED NEW YORK PHYSICIAN OR DOCTOR OF OSTEO-
PATHIC MEDICINE, THE EXPERT WITNESS MUST ALSO BE LICENSED  IN  NEW  YORK
STATE AS A DOCTOR OF MEDICINE OR OSTEOPATHIC MEDICINE;
  (2)  IS  TRAINED  AND  EXPERIENCED IN THE SAME DISCIPLINE OR SCHOOL OF
PRACTICE AS THE DEFENDANT AND  CAN  DEMONSTRATE  BY  COMPETENT  EVIDENCE
THAT,  AS  A RESULT OF TRAINING, EDUCATION, KNOWLEDGE, AND EXPERIENCE IN
THE EVALUATION, DIAGNOSIS, AND TREATMENT OF THE DISEASE OR INJURY  WHICH
IS THE SUBJECT MATTER OF THE LAWSUIT AGAINST THE DEFENDANT, THE INDIVID-
UAL WAS SUBSTANTIALLY FAMILIAR WITH THE APPLICABLE STANDARDS OF CARE AND
PRACTICE  AS  THEY RELATE TO THE ACT OR OMISSION WHICH IS THE SUBJECT OF
THE LAWSUIT ON THE DATE OF THE INCIDENT;
  (3) IF THE DEFENDANT IS CERTIFIED BY A BOARD RECOGNIZED BY THE  AMERI-
CAN  BOARD  OF  MEDICAL  SPECIALTIES OR THE AMERICAN OSTEOPATHIC ASSOCI-
ATION, THE EXPERT MUST BE CERTIFIED IN THE SAME  SPECIALTY  BY  A  BOARD
RECOGNIZED  BY THE AMERICAN BOARD OF MEDICAL SPECIALTIES OR THE AMERICAN
OSTEOPATHIC ASSOCIATION AND MUST HAVE ACKNOWLEDGED EXPERTISE AND  TRAIN-
ING  DIRECTLY  RELATED TO THE PARTICULAR HEALTH CARE OR MATTER AT ISSUE;
AND
  (4) WITHIN FIVE YEARS OF THE DATE OF  THE  ALLEGED  OCCURRENCE  GIVING
RISE TO THE CLAIM, WAS IN ACTIVE MEDICAL PRACTICE IN THE SAME DISCIPLINE
OR  SCHOOL OF PRACTICE AS THE DEFENDANT OR DEVOTED A SUBSTANTIAL PORTION
OF HIS TIME TEACHING AT AN ACCREDITED MEDICAL SCHOOL, OR IN  UNIVERSITY-

S. 3437                             3

BASED  RESEARCH IN RELATION TO THE MEDICAL CARE AND TYPE OF TREATMENT AT
ISSUE.
  (C)  A  COURT APPOINTED MEDICAL EXPERT SHALL HAVE NO FINANCIAL TIES OR
FAMILIAL RELATIONSHIP WITH ANY PARTY TO THE LAWSUIT, ANY  EXPERT  CALLED
TO TESTIFY, OR ANY ATTORNEY REPRESENTING ANY PARTY TO THE LAWSUIT.
  (D) THE COURT APPOINTED MEDICAL EXPERT SHALL HAVE NO EX PARTE COMMUNI-
CATIONS WITH ANY PARTY TO THE LAWSUIT, EXCEPT AS PERMITTED BY THE COURT.
  (E)  THE  PLAINTIFF  AND  DEFENDANT SHALL EQUALLY COMPENSATE THE COURT
APPOINTED MEDICAL EXPERT BASED ON THE PREVAILING FEE FOR MEDICAL EXPERTS
WITH SIMILAR QUALIFICATIONS.
  S 4414. PROCEDURE. CLAIMS ADJUDICATED THROUGH THE  HEALTH  CARE  COURT
SHALL  ADHERE  TO  THIS CHAPTER EXCEPT AS OTHERWISE PROVIDED FOR IN THIS
ARTICLE.
  S 4415. APPELLATE REVIEW. ANY PARTY TO AN  ACTION  IN  A  HEALTH  CARE
COURT  MAY AVAIL THEMSELVES OF ALL APPEAL RIGHTS THAT OTHERWISE WOULD BE
AVAILABLE UNDER THIS CHAPTER.
  S 4416. REPORTS. THE OFFICE OF COURT ADMINISTRATION  SHALL  SUBMIT  AN
ANNUAL REPORT TO THE SPEAKER OF THE ASSEMBLY, THE TEMPORARY PRESIDENT OF
THE  SENATE,  THE  MINORITY LEADER OF THE SENATE, THE MINORITY LEADER OF
THE ASSEMBLY AND THE GOVERNOR DESCRIBING THE FUNCTIONING OF  THE  HEALTH
CARE  COURTS,  INCLUDING  THE NUMBER OF DISPUTES HEARD BY THE COURTS AND
RECOMMENDATIONS FOR IMPROVING THE ABILITY  OF  SUCH  COURTS  TO  RESOLVE
CLAIMS INVOLVING MEDICAL, DENTAL OR PODIATRIC MALPRACTICE.
  S  4417.  DISCLAIMER.  NOTHING  IN  THIS ARTICLE SHALL BE CONSTRUED TO
REMOVE THE JURY AS THE ULTIMATE FINDER OF FACT IN AN ACTION FOR MEDICAL,
DENTAL OR PODIATRIC MALPRACTICE.
  S 2. This act shall take effect on the ninetieth day  after  it  shall
have become a law.