Relates to the use of expert medical testimony and creates the health care courts pilot program; repealer

Summary of provisions

Section one of the bill would amend the § 3101(d)(1)(i) of the Civil Practice Law and Rules (CPLR) to remove the current provision prohibiting the disclosure of the identity of a medical expert witness who intends to testify in a medical liability action. This section also provides that an individual may not serve as expert witness in an action for medical, dental or podiatric malpractice unless such individual is licensed to practice in the same profession, is engaged in clinical practice or teaching and experienced in the care at issue, and is board certified in the same speciality as the defendant if the standard of care involves his or her speciality.

Section two replaces clause (ii) of paragraph 1 of subdivision (d) of § 3101 of the CPLR to require disclosure of the identity of any expert testifying in an action for medical, dental or podiatric malpractice case. Such disclosure shall be accompanied by a written report signed by such expert. 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 examination before trial (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.

Section three of the bill creates a new Article 44-A of the CPLR to establish a pilot program to authorize the Office of Court Administration to set up specialized "medical courts" to adjudicate medical liability actions within five counties across New York State. Such courts would use specially trained judges and objective independent medical expert witnesses, but would not otherwise interfere with the statutory process for adjudicating an action for medical, dental or podiatric malpractice.

Section four would amend section 6530 of the Education Law to create a new element of professional misconduct for providing medical expert witness testimony that is false or without reasonable medical foundation.

Section five would establish an effective date ninety days from when the bill is signed into law.

Justification

The cost of medical liability insurance has risen steadily over the last several years. Most New York physicians, who were already paying enormously high liability premiums to begin with, are now paying 30-47% more for liability insurance than they were in 2003. For many physician specialists practicing in the New York City metropolitan area, the cost for such insurance over the last five years has almost doubled. A recent report by the Center for Health Workforce studies documented that many regions all across the state have begun to see a considerable drop in the number of critically needed surgical specialists, OB-GYNs and primary care physicians. A significant factor is the high cost of liability insurance in New York State.

One cause of the problem is the randomness by which verdicts in medical liability lawsuits are reached. Numerous studies have concluded that the civil justice system frequently produces awards to plaintiffs in medical liability actions where there has been no negligence and, conversely, results in no payment to the plaintiff when there was in fact negligence. Often virtually the same facts will produce an award in one case but a verdict for the defendant in another. There is a lack of consistency in litigation outcome. As a result, this has led to numerous settlements in medical liability actions due to concern that the severity of an injury will result in a jury verdict for the plaintiff even if no negligence has been committed, with the effect that medical liability insurance costs are driven up substantially.

This legislation would begin to take steps to facilitate a more objective analysis of medical liability disputes. Like statutes already passed in many other states in the country, this bill would assure that an expert witness who testifies in a medical liability action has a similar educational and treating background as the defendant health care provider. (The bill would also remove a provision that currently exists under New York law that prohibits the disclosure of the identity of an expert witness who is to testify at a medical liability trial.) This rule applies to no other type of action in New York State, and runs completely contrary to the whole premise of modem jurisprudence which seeks the early and complete exchange of information between litigants.

Moreover, this legislation would permit the creation of special courts to hear medical malpractice cases in up to five counties. Such courts would use specially trained judges who could call independent expert witnesses to provide greater clarity to the jury regarding the specific care that is the subject of the lawsuit. These courts hold the promise of improving the reliability of the system of resolving medical liability disputes, which could ultimately result in reducing the cost of medical liability insurance for physicians and hospitals.

This bill would take important first steps to reduce the increasingly unaffordable cost of medical liability insurance by better facilitating an objective analysis of medical liability disputes without limiting the ability of a plaintiff to bring an action or to be compensated for negligent actions on the part of health care providers.

Legislative history

S.2349 of 2011-12 S.4149-A/A.8066-A of 2007-2008 S.7159/A.6514 of 2009-2010

Fiscal implications

Undetermined.

Effective date

This act shall take effect on the ninetieth day after it shall have become a law.