Relates to the notice of medical, dental or podiatric malpractice action

This measure would eliminate the "notice of medical malpractice action", now required by CPLR 3406 and Uniform Rule 202.56 (22 NYCRR §202.56), while retaining the current requirement that, in medical malpractice and similar actions, the Request for Judicial Intervention be filed within 60 days of joinder of issue.

CPLR 3406 was enacted in 1985 (L. 1985, c. 294) as part of a series of reforms applicable to tort and medical malpractice actions. As subsequently amended, it requires the filing of a "notice of dental, medical or podiatric malpractice action" in those types of actions and authorizes the Chief Administrator to adopt special calendar rules for such actions. Following this mandate, the Chief Administrator has adopted Uniform Rule 202.56, which contains detailed provisions setting forth the requirements of the notice and attachments to the notice, as well as a requirement that in such cases a Request for Judicial Intervention be filed within sixty days of joinder of issue. The rule also sets forth detailed requirements for a preliminary conference to be held shortly after the filing, and provides for penalties for failure to comply.

The notice of medical malpractice action is an anachronism, serving no discernible purpose today. Its elimination will end an unnecessary burden upon attorneys without in any way affecting this type of litigation. However, requiring the early filing of a Request for Judicial Intervention assures that courts will begin to oversee and supervise these cases at an early stage. We believe that this is useful, and, in fact, would like to see this early supervision extended to other cases at such time as the courts have the resources to increase their workload.

To achieve these objectives, we propose amendment of CPLR 3406 to eliminate an of the provisions of that section except those that authorize that Chief Administrator to adopt special calendar rules for dental, medical or podiatric malpractice actions, to prescribe the time for filing a Request for Judicial Intervention and to provide for a preliminary conference as soon as practical following such filing. We also propose amendment of the statute to grant the same authority for such other actions as the Chief Administrator may deem appropriate, thereby giving her the discretion to expand the requirements beyond the cases now covered.

Should this measure be enacted, our Advisory Committee has proposed that Uniform Rule 202.56 be amended to eliminate all of the requirements for a notice of medical malpractice action and all of the rules governing the preliminary conference, leaving those rules

to the more general rules contained in Rule 202.6. The amended rule should be substantially narrowed so as to provide only that, in dental, medical or podiatric malpractice actions, the Request for Judicial Intervention must be filed, as it is now, within sixty days of joinder of issue, and that this filing result in assignment to a judge. Current provisions dealing with the need for motions on missing the deadline and sanctions for late filing should be eliminated, as the Committee believes that this causes unnecessary side issues to be brought into the litigation.

In sum, we propose that the essentials of current calendar practice in dental, medical and podiatric malpractice actions be retained while those requirements that are burdensome and unnecessary be eliminated.

This measure would have no fiscal impact on the State. It would take effect the first of January next succeeding the date it becomes a law.

Legislative History: OCA 2010-57