Amd §§3012-a, 3101, 5031 & 5041, add Art 50-C §§5051 & 5052, CPLR; amd §474-a, Judy L
Requires a certificate of merit in actions for damages, contribution or indemnity arising out of alleged negligence of a professional licensed pursuant to the education law; establishes a party in an action for medical, dental or podiatric malpractice may not omit the name of certain experts in responding to a request; limits judgments for past and future damages in an action to recover damages for dental, medical or podiatric malpractice; limits compensation for noneconomic damages suffered by an injured plaintiff in any personal injury action to $250,000.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2305
SPONSOR: Hawley TITLE OF BILL:
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
PURPOSE OR GENERAL IDEA OF BILL:
This bill would alleviate the expense of the tort system by establishing
a limitation on noneconomic damages in personal injury actions through
amendments to the civil practice law and rules, and judiciary law, in
relation to dental, medical, and podiatric malpractice.
SUMMARY OF PROVISIONS:
Amends CPLR 3012-a to provide that a complaint in a malpractice or
negligence action involving a defined professional must be accompanied
by a certificate of merit of an attorney and that at least one such
professional has been consulted and provided an affidavit in certain
cases, and that the attorney has concluded that there is a reasonable
basis for the action. If the attorney is unable to timely procure such a
consultation after three good faith attempts to do so, this must be
stated. Where the attorney intends to rely solely upon the doctrine of
"res ipsa loquitur," this section is not applicable.
Amends section 3101 of the CPLR in regard to certain provisions relating
to scope of disclosure in expert matters; removes certain restrictions
in the existing statute.
Amends section 5031 of the CPLR relating to periodic payment of judgment
threshold, reduces the same from $1,000,000 to $50,000 in civil actions
including malpractice.
Amends section 5041 of the CPLR similarly as in the section detailed
above, in respect to personal injury, damage and wrongful death actions.
Adds article 50-c to the CPLR. Generally, caps non-economic damage
awards in negligence actions at $250,000.00. Amends section 474-a of the
Judiciary law to adopt a medical malpractice contingency fee schedule to
all actions for personal injury and, further, reduces contingency fees
in such cases by five percent throughout the schedule.
JUSTIFICATION:
Many members of these professions have found themselves to be the
targets of frivolous lawsuits. The CPLR 30 12-a Certificate of Merit
requirement is presently in effect for medical, dental and podiatric
malpractice suits. This legislation seeks to ensure that plaintiff's
counsel has consulted with other stated professionals as relevant to
ascertain that a valid cause of action exists. Litigants will not be
barred from bringing suit, but absent a favorable opinion from a know-
ledgeable subject professional as to the merits, it is anticipated that
actions may be ended in the early stages, thus saving both parties the
expense of litigation, and relieving court congestion. This reform is
supported by 82% of New Yorkers, according to a 1997 statewide Zogby
poll.
PRIOR LEGISLATIVE HISTORY:
A5725 - 05/03/22 held for consideration in codes
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
According to the Public Policy Institute, in 1996 New York State's "Tort
Tax" amounted to $14.3 billion or a tax upon every New York State citi-
zen of $787 per person. This tort tax is equivalent to 2.35% of our
state's estimated gross state product and is approximately 28% above the
national average. This bill, together with companion legislation affect-
ing products liability, volunteer liability, workplace reform and
contributory negligence would cut this tax by roughly $800 million per
year.
EFFECTIVE DATE:
This act shall take effect immediately, with additional provisions where
appropriate.
