S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5018
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 6, 2019
                                ___________
 
 Introduced by M. of A. ABBATE -- read once and referred 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-

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

                                                            LBD09477-01-9

 A. 5018                             2

 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
 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

 A. 5018                             3

 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
 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:

 A. 5018                             4
 
   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. 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; provided, however, that section one of this act shall
 take effect on the one hundred eightieth day after this act  shall  have
 become a law.