Limits evidence of admissions in medical, dental or podiatric malpractice actions

Title of bill

An act to amend the civil practice law and rules, in relation to evidence of admissions in medical, dental or podiatric malpractice actions

Purpose

This legislation limits evidence of admissions in medical, dental or podiatric malpractice actions.

Summary of provisions

Section 1. The civil practice law and rules is amended by adding a new section 4549 to read as follows:

1. In any civil action brought for medical, dental or podiatric malpractice, or in any arbitration proceedings related to such civil action, any and all statements, writings, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a health care provider or an employee of a health care provider to the patient and which relate to the discomfort, pain, suffering, injury, or death of the patient, shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

2. For purposes of this section, unless the context otherwise requires: (a) "Health care provider" means any person licensed or certified by the state of New York to deliver health care and any clinic, health dispensary, or health facility licensed by the state of New York. The term includes any professional corporation or other professional entity comprised of such health care providers as permitted by the laws of this state. (b) "Relative" means a patient's spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half brother, half sister, or spouse's parents. The term includes said relationships that are created as a result of adoption. In addition, "relative" includes any person who has a family-type relationship with the patient. (c) "Representative" means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a health care proxy, or any person recognized in law or custom as a patient's agent.

Justification

Lawyers and insurers regularly advise parties to accidents not to express regret or convey an apology or statement of compassion, commiseration or contrition for fear it will be used against the parties and thereby cause them financial harm. Commentators and scholars and now the courts and legislatures have observed that many lawsuits, although unquantifiable, result from anger which, in turn, result from a failure of another party to express regret or sympathy. Several states including California, Connecticut, Florida, Illinois, Massachusetts and Vermont have already passed various versions of this 'apology law.' The purpose of this bill is to attempt to reduce lawsuits and encourage settlements by fostering the use of apologies in connection with accident-related injuries or death with the passage of this bill, conduct, statements, writings, or activity constituting voluntary offers of assistance or expressions of benevolence, regret, mistake, sympathy or apology between or among parties or potential parties to a civil action will be encouraged and will not be considered an admission of liability or as evidence against interest.

Legislative history

New bill.

Fiscal implications

None.

Effective date

This act shall take effect immediately.