Enacts the "medical liability reform act"; repealer

Section 2 adds the requirement of an affidavit from a physician concluding that there is a reasonable basis for the commencement of an action, with such affidavit to accompany the certificate required by this section, with caveats.

Section 3 repeals the definition of "non-economic loss" and replaces it with definitions for "noneconomic damages" and "actual economic damages."

Section 4 amends section 1601 of the CPLR to make equitable share regardless of whether a defendant was less that fifty percent liable, as determined in accordance with the relative culpability of each defendant.

Section 5 adds Article 50-C, limitation on non-economic damages to the CPLR.

Section 6 amends section 3101 of the CPLR removes the exception that allows the omission of the names of medical, dental or podiatric experts from production materials concerning experts testifying at trial.

Section 7 replaces clause (ii) of paragraph 1 of subdivision (d) of section 3101 of the CPLR to require that, in an action for medical, dental or podiatric malpractice, the report shall contain a complete statement of all opinions to be expressed, the basis and reasons therefor; the data or other information considered by such person in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the person, including a list of all publications authored by the person during the preceding ten years; the compensation to be paid for the person's consideration of data or other information and for his or her testimony; and a listing of any other cases in which the person has testified as an expert at trial or by oral deposition within the preceding four years. Additionally, this bill requires a party to produce such expert for an EBT, in accordance with rule 3107 of the CPLR. Unless manifest injustice would result, the court shall require that the party noticing an oral deposition of such an expert witness pay such witness a reasonable fee for time spent in attending such oral deposition. Violation of these provisions shall preclude a party from offering such expert's testimony at the trial of the action.

Existing law

Amends sections 3012-a, 1600, 1601 of and adds article 50-C to the CPLR.

Justification

The cost of medical malpractice lawsuits in the state of New York have increased steadily for several years. Such cost has driven malpractice insurance premiums up for health care professionals and driven up the cost of health care for the public. This bill makes medical malpractice liability reform in several important ways.

The bill provides 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, by adding the requirement of an affidavit of merit, signed by a physician, and providing a judge the tools to remove a malpractice claim for failure to comply with the provisions of this amended section.

To bring down the amount of judgments in medical malpractice claims, the bill necessarily establishes statutory language for "noneconomic damages" and "actual economic damages" in order to facilitate the $250,000 cap on noneconomic damages for which this bill provides. Additionally, the bill links a defendant's monetary liability to their equitable share in accordance with the relative culpability.

This bill expands the scope of production in regards to expert witnesses and their testimony, including identity, which a party must disclose upon request by its opposition. This bill is necessary to facilitate meaningful reform of medical malpractice liability.

Legislative history

S.2144/A.3139 of 2007-2008 S.3035/A.5674 of 2005-2006 S.469-A/A.9599 of 2003-2004 S.4292 of 2001-2002

Fiscal implications

None.

Effective date

This act shall take effect immediately except that sections two, three, six and seven of this act shall take effect 90 days after this act shall have become a law and shall be applicable to actions commenced and claims filed on and after such date. Section four of this act shall be applicable to causes of action and claims on and after this effective date.