Relates to dental, medical and podiatric malpractice actions and to establishing a limitation on noneconomic damages in personal injury actions

6 Co-sponsors

• James S. Alesi
• John A. DeFrancisco
• Owen H. Johnson
• Thomas P. Morahan
• Frank Padavan
• James L. Seward

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

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 because of the running of the statute of limitations or 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 the professions have found themselves to be the targets of frivolous lawsuits. The CPLR 30l2-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 knowledgeable 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.

Legislative history

2007-08, S.4231/A.10109 2005-06, S.4191 2004, Included in 2004 legislation entitled the "Civil Justice Reform Act of 2004".

Fiscal implications

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 citizen 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 affecting 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.