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.
STATE OF NEW YORK
________________________________________________________________________
7728
IN SENATE
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:
1 Section 1. Section 3012-a of the civil practice law and rules, as
2 amended by chapter 507 of the laws of 1987, is amended to read as
3 follows:
4 § 3012-a. [Certificate] Affidavit of merit in medical, dental and
5 podiatric malpractice actions. (a) In any action for medical, dental or
6 podiatric malpractice, the complaint shall be accompanied by [a certif-
7 icate, executed by the attorney for the plaintiff, declaring] an affida-
8 vit of merit executed by a healthcare professional who the plaintiff's
9 attorney or, the plaintiff if not represented by an attorney, reasonably
10 believes is knowledgeable in the relevant issues involved in the partic-
11 ular action to be an expert physician in a medical malpractice action,
12 an expert dentist in a dental malpractice action or an expert podiatrist
13 in a podiatric malpractice action, stating that[:
14 (1) the attorney has reviewed the facts of the case and has consulted
15 with at least one physician in medical malpractice actions, at least one
16 dentist in dental malpractice actions or at least one podiatrist in
17 podiatric malpractice actions who is licensed to practice in this state
18 or any other state and who the attorney reasonably believes is know-
19 ledgeable in the relevant issues involved in the particular action, and
20 that the attorney has concluded on the basis of such review and consul-
21 tation that there is a reasonable basis for the commencement of such
22 action; or
23 (2) the attorney was unable to obtain the consultation required by
24 paragraph one of this subdivision because a limitation of time, estab-
25 lished by article two of this chapter, would bar the action and that the
26 certificate required by paragraph one of this subdivision could not
27 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
1 executed pursuant to this subdivision, the certificate required by this
2 section shall be filed within ninety days after service of the
3 complaint; or
4 (3) the attorney was unable to obtain the consultation required by
5 paragraph one of this subdivision because the attorney had made three
6 separate good faith attempts with three separate physicians, dentists or
7 podiatrists, in accordance with the provisions of paragraph one of this
8 subdivision to obtain such consultation and none of those contacted
9 would agree to such a consultation] the physician in a medical malprac-
10 tice action, or the dentist in a dental malpractice action, or the
11 podiatrist in a podiatric malpractice action has reviewed the complaint
12 in the malpractice action and all medical records supplied by the
13 plaintiff's attorney, or plaintiff if not represented by an attorney,
14 and states each of the following with individual particularization to
15 the specifically named defendant or defendants:
16 (1) The applicable standard of practice or care concerning the allega-
17 tions contained in the complaint.
18 (2) The applicable standard of practice or care breached.
19 (3) The actions that should have been taken or omitted in order to
20 have complied with the applicable standard of care.
21 (4) The manner in which the breach of the standard of practice or care
22 was the proximate cause of the plaintiff's injury.
23 (b) [Where a certificate is required pursuant to this section, a
24 single certificate shall be filed for each action, even if more than one
25 defendant has been named in the complaint or is subsequently named]
26 Where an affidavit of merit is required pursuant to this section, an
27 individual affidavit shall be filed for each named defendant who is a
28 physician, dentist or podiatrist named in the complaint.
29 (c) Where the attorney intends to rely solely on the doctrine of "res
30 ipsa loquitur", this section shall be inapplicable. In such cases, the
31 complaint shall be accompanied by [a certificate] an affidavit, executed
32 by the attorney, declaring that the attorney is solely relying on such
33 doctrine and, for that reason, is not filing [a certificate] the affida-
34 vit of merit required by this section.
35 (d) [If a request by the plaintiff for the records of the plaintiff's
36 medical or dental treatment by the defendants has been made and such
37 records have not been produced, the plaintiff shall not be required to
38 serve the certificate required by this section until ninety days after
39 such records have been produced] The plaintiff may, in lieu of serving
40 the affidavit of merit required by this section, provide the defendant
41 or defendants with the information required by paragraph one of subdivi-
42 sion (d) of section thirty-one hundred one of this chapter within the
43 period of time prescribed by this section, provided that the disclosure
44 be executed by the physician in a medical malpractice action, or the
45 dentist in a dental malpractice action, or the podiatrist in a podiatric
46 malpractice action who has reviewed the complaint in the malpractice
47 action and all medical records supplied by the plaintiff's attorney.
48 (e) [For purposes of this section, and subject to the provisions of
49 section thirty-one hundred one of this chapter, an attorney who submits
50 a certificate as required by paragraph one or two of subdivision (a) of
51 this section and the physician, dentist or podiatrist with whom the
52 attorney consulted shall not be required to disclose the identity of the
53 physician, dentist or podiatrist consulted and the contents of such
54 consultation; provided, however, that when the attorney makes a claim
55 under paragraph three of subdivision (a) of this section that he was
56 unable to obtain the required consultation with the physician, dentist
S. 7728 3
1 or podiatrist, the court may, upon the request of a defendant made prior
2 to compliance by the plaintiff with the provisions of section thirty-one
3 hundred of this chapter, require the attorney to divulge to the court
4 the names of physicians, dentists or podiatrists refusing such consulta-
5 tion] The plaintiff's attorney or, the plaintiff if not represented by
6 an attorney, may with good cause shown, file a motion to extend the
7 period of time to file the required affidavit of merit. The motion
8 shall be filed together with the complaint. The court may grant reason-
9 able time to file the affidavit of merit, not to exceed ninety days,
10 except the time may be extended beyond ninety days if the court deter-
11 mines that a defendant or non-party has failed to cooperate with access
12 to medical or dental records necessary for the affidavit of merit or
13 that other circumstances warrant extension of time.
14 (f) [The provisions of this section shall not be applicable to a
15 plaintiff who is not represented by an attorney.
16 (g) The plaintiff may, in lieu of serving the certificate required by
17 this section, provide the defendant or defendants with the information
18 required by paragraph one of subdivision (d) of section thirty-one
19 hundred one of this chapter within the period of time prescribed by this
20 section] Any complaint alleging medical, dental, or podiatric malprac-
21 tice that is not accompanied by an affidavit of merit as required by
22 this section shall be deemed defective as a matter of law and, upon
23 motion by the defendant, be dismissed on the merits by the court. Such
24 dismissal shall be with prejudice.
25 § 2. Subdivision (a) of section 3101 of the civil practice law and
26 rules is amended by adding a new paragraph 5 to read as follows:
27 (5) notwithstanding any provision of subparagraph (i) of paragraph one
28 of subdivision (d) of this section to the contrary, in an action for
29 medical, dental or podiatric malpractice, each party shall serve the
30 disclosure described in such subparagraph within sixty days preceding
31 the filing required by rule thirty-four hundred two of this chapter.
32 Further, at any time after joinder of issue, any party may, by written
33 notice made to and served upon all other parties and filed with the
34 court; conduct an examination upon oral deposition, of any person who
35 has been disclosed as an expert witness by any other party. Each party
36 shall be required to produce his or her expert witness for examination
37 upon oral deposition upon receipt of a notice to take oral deposition in
38 accordance with rule thirty-one hundred seven of this chapter and,
39 unless otherwise ordered by the court, all expert witness depositions
40 shall be taken before the filing required by rule thirty-four hundred
41 two of this chapter. If any party, having received such notice, fails to
42 make that party's expert witness available for oral deposition, that
43 party shall be precluded from offering expert testimony at the trial of
44 the action. For purposes of rule thirty-one hundred ten and rule thir-
45 ty-one hundred seventeen, an expert witness, as provided in this
46 section, shall be considered a party. Each party seeking the deposition
47 of an expert witness shall pay the expert a reasonable fee for the time
48 spent at the deposition.
49 § 3. Paragraph 1 of subdivision (d) of section 3101 of the civil prac-
50 tice law and rules, as amended by chapter 184 of the laws of 1988,
51 subparagraph (ii) as amended by chapter 165 of the laws of 1991, is
52 amended to read as follows:
53 1. Experts. (i) Upon request, each party shall identify each person
54 whom the party expects to call as an expert witness at trial and shall
55 disclose in reasonable detail the subject matter on which each expert is
56 expected to testify, the substance of the facts and opinions on which
S. 7728 4
1 each expert is expected to testify, the qualifications of each expert
2 witness and a summary of the grounds for each expert's opinion. However,
3 where a party for good cause shown retains an expert an insufficient
4 period of time before the commencement of trial to give appropriate
5 notice thereof, the party shall not thereupon be precluded from intro-
6 ducing the expert's testimony at the trial solely on grounds of noncom-
7 pliance with this paragraph. In that instance, upon motion of any party,
8 made before or at trial, or on its own initiative, the court may make
9 whatever order may be just. [In an action for medical, dental or podia-
10 tric malpractice, a party, in responding to a request, may omit the
11 names of medical, dental or podiatric experts but shall be required to
12 disclose all other information concerning such experts otherwise
13 required by this paragraph.
14 (ii) In an action for medical, dental or podiatric malpractice, any
15 party may, by written offer made to and served upon all other parties
16 and filed with the court, offer to disclose the name of, and to make
17 available for examination upon oral deposition, any person the party
18 making the offer expects to call as an expert witness at trial. Within
19 twenty days of service of the offer, a party shall accept or reject the
20 offer by serving a written reply upon all parties and filing a copy
21 thereof with the court. Failure to serve a reply within twenty days of
22 service of the offer shall be deemed a rejection of the offer. If all
23 parties accept the offer, each party shall be required to produce his or
24 her expert witness for examination upon oral deposition upon receipt of
25 a notice to take oral deposition in accordance with rule thirty-one
26 hundred seven of this chapter. If any party, having made or accepted the
27 offer, fails to make that party's expert available for oral deposition,
28 that party shall be precluded from offering expert testimony at the
29 trial of the action.
30 (iii)] (ii) Further disclosure concerning the expected testimony of
31 any expert, except as expressly provided in paragraph five of subdivi-
32 sion (a) of this section, may be obtained only by court order upon a
33 showing of special circumstances and subject to restrictions as to scope
34 and provisions concerning fees and expenses as the court may deem appro-
35 priate. However, a party, without court order, may take the testimony of
36 a person authorized to practice medicine, dentistry or podiatry who is
37 the party's treating or retained expert, as described in paragraph three
38 of subdivision (a) of this section, in which event any other party shall
39 be entitled to the full disclosure authorized by this article with
40 respect to that expert without court order.
41 § 4. This act shall take effect on the ninetieth day after it shall
42 have become a law, except that section one of this act shall take effect
43 on the one hundred eightieth day after this act shall have become a law.
