Enacts the "medical liability reform act"; repealer

Summary of provisions

§ 1 -Title. "Medical Liability Reform Act."

§ 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.

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

§ 4 - Amends § 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.

§ 5 - Adds Article 50-C, limitation on non-economic damages to the CPLR.

§ 6 - Amends § 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.

§ 7 - Replaces clause (ii) of paragraph I of subdivision (d) of § 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.

§ 8 - Effective date.

Existing law

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

Justification

The cost of medical malpractice liability insurance coverage in the state of New York have increased steadily for several years, increasing between 55-80% between 2003 and 2008 and an additional 5% in July 2010. Such unsustainable cost increases not only threatens access to care for patients, it also has driven up the cost of health care for the public. Notably, former Lieutenant Governor Richard Ravitch highlighted in a September 2010 report the need for medical liability reform as one necessary component to reduce New York's extraordinary Medicaid cost burden. Several recent studies have detailed the billions of dollars in health care costs that are unnecessarily spent each year due to the practice of "defensive medicine", such as unnecessary MRIs, CT scans and specialty referrals.

These enormous costs are driven by an unpredictable medical liability adjudication system that numerous studies have concluded results in cases where awards are made despite the absence of any negligence whatsoever. While an overwhelming majority of medical liability cases brought result in no payment, even the costs of defending these cases are extensive and significantly add to the astronomical cost of medical liability insurance.

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. There are 30 states that have enacted some form of a cap on non-economic awards in medical liability actions, including California and Texas. The effect in premium has been significant. California physicians pay far less than what New York physicians pay for liability premiums, in Texas, physicians have seen significant reductions in their liability insurance costs since the enactment of a cap in their state in 2003, as well as a significant increase in physician license applications.

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

2009-2010: A.6184/S.6799 2007-2008: A.3139/S.2144 2005-2006: A.5674/S.3035 2003-2004: A.9599/S.469-A.

Fiscal implications

None.

Effective date

This act shall take effect immediately, except that sections 2, 3, 6 and 7 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. Sections 4 and 5 of this act shall be applicable to causes of action and claims on and after this effective date.