NY State Senate Bill 2017-S7728

Senate Bill S7728

2017-2018 Legislative Session

Requires the filing of an affidavit of merit in action for medical, dental or podiatric malpractice

download bill text pdf

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 13, 2018	referred to judiciary

co-Sponsors

2017-S7728 (ACTIVE) - Details

See Assembly Version of this Bill:: A11168
Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §§3012-a & 3101, CPLR
Versions Introduced in 2019-2020 Legislative Session:: A5018

2017-S7728 (ACTIVE) - Summary

Requires the complaint in an action for medical, dental or podiatric malpractice to be accompanied by an affidavit of merit stating information attested to by an appropriate health care professional which establishes the alleged malpractice; and requires enhanced discovery and disclosure of experts in medical, dental and podiatric malpractice actions.

2017-S7728 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S7728

SPONSOR: HANNON
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to requir-
ing an affidavit of merit  and expert discovery in medical, dental and
podiatric malpractice actions

 
PURPOSE:

To require an affidavit of merit filled out by a qualified health care
provider as a condition for filing a medical malpractice lawsuit.  Also,
to establish clear rules requiring timely disclosure of expert witnesses
with comprehensive information regarding the expert and the basis for
their testimony.

 
SUMMARY OF PROVISIONS:

Section one amends the Civil Practice Law and Rules (CPLR) § 3012-a to
require an affidavit from a physician concluding that there is a reason-

able basis for the commencement of a medical malpractice lawsuit. In the
alternative, the plaintiff may provide the expert witness information as
required in CPLR section 3101 (d) (1).

Section two amends CPLR § 3101(a) by adding a new paragraph 5 to require
each party in a medical malpractice action to file complete disclosure
of their expert witness or witnesses within 60 days before filing the
note of issue. Explicitly allows deposition of expert witnesses in
medical malpractice cases any time after joinder of issue.

Section three amends CPLR § 3101(d) to delete the current law's express
omission of expert witness disclosure for medical malpractice actions
and reiterates that section 3101 (a) (5) will apply for all disclosure
regarding expert witnesses in medical malpractice cases.

Section four establishes the effective date.

 
JUSTIFICATION:

New York is first among the 50 states in annual medical malpractice
indemnity payouts, which totaled more than $700 million in 2016. In
addition, this over $700 million payout figure is almost double the
amount of the next highest state for medical malpractice payouts, Penn-
sylvania. Breaking down the costs of medical malpractice indemnity
payouts on a per capita basis, in 2016 New York's medical malpractice
payouts per capital were $35, second only to New Hampshire at $39 per
capita. In fact, New York's annual medical malpractice indemnity payouts
exceed comparable payouts for the entire Midwest region of the United
States.

Medical malpractice insurance premiums in New York are punishingly high
for certain high-risk medical specialties, especially those specialty
providers practicing in high cost regions of the state. In 2017 a neuro-
surgeon on Long Island with a policy limit of $1.3 million per
occurrence/$3.9 million aggregate pays $320,492 for medical malpractice
insurance coverage while an ob-gyn in Bronx or Richmond counties with
the same policy limits pays $186,630 for coverage Those same medical
specialists with $1.3 million/$3.9 million policy limits are paying in
the most expensive Upstate territory (the Mid-Hudson valley counties)
$152,216 and $90,241, respectively.

These enormous costs are driven by an unpredictable medical liability
adjudication system that numerous studies have concluded results in
cases where awards are made despite the absence of any negligence what-
soever. While an overwhelming majority of medical liability cases result
in no indemnity payment, the costs of defending these cases are extreme-
ly expensive and significantly add to the astronomical cost of medical
liability insurance.

Under the current New York laws and rules governing medical malpractice
actions, the plaintiffs attorney must submit with the complaint a
certificate of merit. This unsworn certificate must state that the
attorney has consulted with a health care provider (not necessarily the
same specialty as the defendant provider) and based on this consultation
and review there is a reasonable basis for the action. On its face it is
apparent that this process is not a comprehensive vetting of medical
malpractice claims prior to commencing a legal action.

Accordingly, this bill would require a plaintiff in a medical malprac-
tice action to provide a particularized affidavit focused on the alleged
deviation from the standard of care for each defendant and each asserted
deviation. This affidavit of merit requirement would provide a true
mechanism for removing frivolous claims from the dockets of New York's
court rooms. Fewer non-meritorious claims will be advanced in the state
through this addition of an affidavit of merit that is signed by a
physician and stipulates that a malpractice claim shall be dismissed for
failure to comply with the provisions of this section.

To curb these costs, the bill also provides for full and complete
discovery of expert witnesses in medical malpractice lawsuits. Expert
witnesses are often critical to the strength of a case, and can have a
substantial impact on the case's outcome. The existing law is fundamen-
tally unfair to medical malpractice defendants because these health care
providers cannot avail themselves of discovery as completely as other
New York civil defendants. This is due to the current law's denial of
access by medical malpractice defendants from obtaining full details and
complete information concerning any experts retained by the plaintiff.
New York's law requires disclosure specifically so that parties can
understand the strength of the case against them and engage in meaning-
ful settlement negotiations before a case goes to trial. The practice of
withholding the identity of experts until the moment before trial-
"trial by ambush" - unfairly disadvantages defendants because they are
not afforded adequate time prepare a defense and cross examination. The
solution to ending "trial by ambush" is to require all parties to
disclose their expert witnesses no later than the "note of issue," which
is the point at which a lawsuit is certified as ready for trial. This
would reduce frivolous lawsuits and promote meaningful settlement nego-
tiations before court resources are expended. Ultimately, this would
reduce the financial and administrative burdens on the courts, allowing
more expedient justice for those with legitimate claims.

 
LEGISLATIVE HISTORY:

New Bill.

 
FISCAL IMPLICATIONS:
None

 
EFFECTIVE DATE:
This act shall take effect 90 days after it becomes a law; provided
section one shall take effect 180 after it becomes law.

2017-S7728 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7728
 
                             I N  S E N A T E
 
                             February 13, 2018
                                ___________
 
 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, in relation to requir-
   ing an affidavit of merit  and expert discovery in medical, dental and
   podiatric malpractice 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:
   §  3012-a.  [Certificate]  AFFIDAVIT  of  merit in medical, dental and
 podiatric malpractice actions. (a) In any action for medical, dental  or
 podiatric  malpractice, the complaint shall be accompanied by [a certif-
 icate, executed by the attorney for the plaintiff, declaring] AN AFFIDA-
 VIT OF MERIT EXECUTED BY A HEALTHCARE PROFESSIONAL WHO  THE  PLAINTIFF'S
 ATTORNEY OR, THE PLAINTIFF IF NOT REPRESENTED BY AN ATTORNEY, REASONABLY
 BELIEVES IS KNOWLEDGEABLE IN THE RELEVANT ISSUES INVOLVED IN THE PARTIC-
 ULAR  ACTION  TO BE AN EXPERT PHYSICIAN IN A MEDICAL MALPRACTICE ACTION,
 AN EXPERT DENTIST IN A DENTAL MALPRACTICE ACTION OR AN EXPERT PODIATRIST
 IN A PODIATRIC MALPRACTICE ACTION, STATING 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
 that  the attorney has concluded on the basis of such review and consul-
 tation that there is a reasonable basis for  the  commencement  of  such
 action; or
   (2)  the  attorney  was  unable to obtain the consultation required by
 paragraph one of this subdivision because a limitation of  time,  estab-
 lished 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

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD14556-02-8

 S. 7728                             2

 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 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] THE PHYSICIAN IN A MEDICAL MALPRAC-
 TICE ACTION, OR THE DENTIST IN  A  DENTAL  MALPRACTICE  ACTION,  OR  THE
 PODIATRIST  IN A PODIATRIC MALPRACTICE ACTION HAS REVIEWED THE COMPLAINT
 IN THE MALPRACTICE ACTION  AND  ALL  MEDICAL  RECORDS  SUPPLIED  BY  THE
 PLAINTIFF'S  ATTORNEY,  OR  PLAINTIFF IF NOT REPRESENTED BY AN ATTORNEY,
 AND STATES EACH OF THE FOLLOWING WITH  INDIVIDUAL  PARTICULARIZATION  TO
 THE SPECIFICALLY NAMED DEFENDANT OR DEFENDANTS:
   (1) THE APPLICABLE STANDARD OF PRACTICE OR CARE CONCERNING THE ALLEGA-
 TIONS CONTAINED IN THE COMPLAINT.
   (2) THE APPLICABLE STANDARD OF PRACTICE OR CARE BREACHED.
   (3)  THE  ACTIONS  THAT  SHOULD HAVE BEEN TAKEN OR OMITTED IN ORDER TO
 HAVE COMPLIED WITH THE APPLICABLE STANDARD OF CARE.
   (4) THE MANNER IN WHICH THE BREACH OF THE STANDARD OF PRACTICE OR CARE
 WAS THE PROXIMATE CAUSE OF THE PLAINTIFF'S INJURY.
   (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]
 WHERE AN AFFIDAVIT OF MERIT IS REQUIRED PURSUANT  TO  THIS  SECTION,  AN
 INDIVIDUAL  AFFIDAVIT  SHALL  BE FILED FOR EACH NAMED DEFENDANT WHO IS A
 PHYSICIAN, DENTIST OR PODIATRIST NAMED IN THE COMPLAINT.
   (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] AN AFFIDAVIT, executed
 by the attorney, declaring that the attorney is solely relying  on  such
 doctrine and, for that reason, is not filing [a certificate] THE AFFIDA-
 VIT OF MERIT 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] THE PLAINTIFF MAY, IN LIEU OF SERVING
 THE AFFIDAVIT OF MERIT REQUIRED BY THIS SECTION, PROVIDE  THE  DEFENDANT
 OR DEFENDANTS WITH THE INFORMATION REQUIRED BY PARAGRAPH ONE OF SUBDIVI-
 SION  (D)  OF  SECTION THIRTY-ONE HUNDRED ONE OF THIS CHAPTER WITHIN THE
 PERIOD OF TIME PRESCRIBED BY THIS SECTION, PROVIDED THAT THE  DISCLOSURE
 BE  EXECUTED  BY  THE  PHYSICIAN IN A MEDICAL MALPRACTICE ACTION, OR THE
 DENTIST IN A DENTAL MALPRACTICE ACTION, OR THE PODIATRIST IN A PODIATRIC
 MALPRACTICE ACTION WHO HAS REVIEWED THE  COMPLAINT  IN  THE  MALPRACTICE
 ACTION AND ALL MEDICAL RECORDS SUPPLIED BY THE PLAINTIFF'S ATTORNEY.
   (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 attorney  makes  a  claim
 under  paragraph  three  of  subdivision (a) of this section that he was
 unable to obtain the required consultation with the  physician,  dentist

 S. 7728                             3

 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  of  this  chapter, require the attorney to divulge to the court
 the names of physicians, dentists or podiatrists refusing such consulta-
 tion]  THE  PLAINTIFF'S ATTORNEY OR, THE PLAINTIFF IF NOT REPRESENTED BY
 AN ATTORNEY, MAY WITH GOOD CAUSE SHOWN, FILE  A  MOTION  TO  EXTEND  THE
 PERIOD  OF  TIME  TO  FILE  THE REQUIRED AFFIDAVIT OF MERIT.  THE MOTION
 SHALL BE FILED TOGETHER WITH THE COMPLAINT. THE COURT MAY GRANT  REASON-
 ABLE  TIME  TO  FILE  THE AFFIDAVIT OF MERIT, NOT TO EXCEED NINETY DAYS,
 EXCEPT THE TIME MAY BE EXTENDED BEYOND NINETY DAYS IF THE  COURT  DETER-
 MINES  THAT A DEFENDANT OR NON-PARTY HAS FAILED TO COOPERATE WITH ACCESS
 TO MEDICAL OR DENTAL RECORDS NECESSARY FOR THE  AFFIDAVIT  OF  MERIT  OR
 THAT OTHER CIRCUMSTANCES WARRANT EXTENSION OF TIME.
   (f)  [The  provisions  of  this  section  shall not be applicable to a
 plaintiff 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]  ANY  COMPLAINT ALLEGING MEDICAL, DENTAL, OR PODIATRIC MALPRAC-
 TICE THAT IS NOT ACCOMPANIED BY AN AFFIDAVIT OF  MERIT  AS  REQUIRED  BY
 THIS  SECTION  SHALL  BE  DEEMED  DEFECTIVE AS A MATTER OF LAW AND, UPON
 MOTION BY THE DEFENDANT, BE DISMISSED ON THE MERITS BY THE  COURT.  SUCH
 DISMISSAL SHALL BE WITH PREJUDICE.
   §  2.  Subdivision  (a)  of section 3101 of the civil practice law and
 rules is amended by adding a new paragraph 5 to read as follows:
   (5) NOTWITHSTANDING ANY PROVISION OF SUBPARAGRAPH (I) OF PARAGRAPH ONE
 OF SUBDIVISION (D) OF THIS SECTION TO THE CONTRARY,  IN  AN  ACTION  FOR
 MEDICAL,  DENTAL  OR  PODIATRIC  MALPRACTICE, EACH PARTY SHALL SERVE THE
 DISCLOSURE DESCRIBED IN SUCH SUBPARAGRAPH WITHIN  SIXTY  DAYS  PRECEDING
 THE  FILING  REQUIRED  BY  RULE THIRTY-FOUR HUNDRED TWO OF THIS CHAPTER.
 FURTHER, AT ANY TIME AFTER JOINDER OF ISSUE, ANY PARTY MAY,  BY  WRITTEN
 NOTICE  MADE  TO  AND  SERVED  UPON ALL OTHER PARTIES AND FILED WITH THE
 COURT; CONDUCT AN EXAMINATION UPON ORAL DEPOSITION, OF  ANY  PERSON  WHO
 HAS  BEEN  DISCLOSED AS AN EXPERT WITNESS BY ANY OTHER PARTY. 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 AND,
 UNLESS OTHERWISE ORDERED BY THE COURT, ALL  EXPERT  WITNESS  DEPOSITIONS
 SHALL  BE  TAKEN  BEFORE THE FILING REQUIRED BY RULE THIRTY-FOUR HUNDRED
 TWO OF THIS CHAPTER. IF ANY PARTY, HAVING RECEIVED SUCH NOTICE, FAILS TO
 MAKE THAT PARTY'S EXPERT WITNESS AVAILABLE  FOR  ORAL  DEPOSITION,  THAT
 PARTY  SHALL BE PRECLUDED FROM OFFERING EXPERT TESTIMONY AT THE TRIAL OF
 THE ACTION. FOR PURPOSES OF RULE THIRTY-ONE HUNDRED TEN AND  RULE  THIR-
 TY-ONE  HUNDRED  SEVENTEEN,  AN  EXPERT  WITNESS,  AS  PROVIDED  IN THIS
 SECTION, SHALL BE CONSIDERED A PARTY. EACH PARTY SEEKING THE  DEPOSITION
 OF  AN EXPERT WITNESS SHALL PAY THE EXPERT A REASONABLE FEE FOR THE TIME
 SPENT AT THE DEPOSITION.
   § 3. 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

 S. 7728                             4
 
 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. 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)] (II) Further disclosure concerning the  expected  testimony  of
 any  expert,  EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPH FIVE OF SUBDIVI-
 SION (A) OF THIS SECTION, 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 appro-
 priate. However, a party, without court order, may take the testimony of
 a  person  authorized to practice medicine, dentistry or podiatry who is
 the party's treating or retained expert, as described in paragraph three
 of subdivision (a) of this section, in which event any other party shall
 be entitled to the full  disclosure  authorized  by  this  article  with
 respect to that expert without court order.
   §  4.  This  act shall take effect on the ninetieth day after it shall
 have become a law, except that section one of this act shall take effect
 on the one hundred eightieth day after this act shall have become a law.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Senate Bill S7728

Share this bill

Sponsored By

Kemp Hannon