S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2744

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              March 2, 2009
                               ___________

Introduced  by  Sens.  GOLDEN, LARKIN, PADAVAN, SEWARD -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Codes

AN  ACT to amend the civil practice law and rules, in relation to limit-
  ing the personal liability of obstetricians-gynecologists and midwives
  in certain cases, the qualifications of expert witnesses  who  testify
  in  personal injury actions against such professionals, and the appeal
  of verdicts rendered therein; to  amend  the  state  finance  law,  in
  relation  to  establishing  the  impaired infant compensation fund; to
  amend the social services law,  in  relation  to  the  eligibility  of
  impaired  infants for the cost of medical assistance; and to amend the
  public health law, in relation to professional misconduct  and  physi-
  cian profiles

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The civil practice law and rules is amended by adding a new
article 75-B to read as follows:

                              ARTICLE 75-B
       LIABILITY FOR DAMAGES IN MEDICAL MALPRACTICE ACTIONS AGAINST
                       OBSTETRICIANS-GYNECOLOGISTS
                              AND MIDWIVES

SECTION 7580. DEFINITIONS.
        7581. APPLICABILITY.
        7582. LIMITATION ON LIABILITY.
        7583. SETTLEMENT PROCEEDINGS.
        7584. INSTRUCTIONS TO JURY.

  S 7580. DEFINITIONS. AS USED IN THIS ARTICLE:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06194-01-9

              

S. 2744                             2

  1. "PERSONAL INJURY  ACTION"  MEANS  ANY  MEDICAL  MALPRACTICE  ACTION
ACCRUING  PRIOR  TO,  ON,  OR  AFTER  THE EFFECTIVE DATE OF THIS ARTICLE
AGAINST AN ATTENDING PHYSICIAN OR MIDWIFE, OR ANY SUCH ACTION AGAINST  A
PROFESSIONAL  SERVICES LIMITED LIABILITY COMPANY, A FOREIGN PROFESSIONAL
SERVICES LIMITED LIABILITY COMPANY, A REGISTERED LIMITED LIABILITY PART-
NERSHIP  OR  A NEW YORK REGISTERED FOREIGN LIMITED LIABILITY PARTNERSHIP
ORGANIZED OR OPERATING PURSUANT TO THE PROVISIONS OF THE LIMITED LIABIL-
ITY LAW OR THE PARTNERSHIP LAW WHERE THE ATTENDING PHYSICIAN OR  MIDWIFE
HAS  A  MEMBERSHIP  OR  PARTNERSHIP INTEREST, OR IS AN EMPLOYEE, WHETHER
SUCH ACTION IS ALLEGED IN TORT, CONTRACT, COMMON LAW, CASE LAW,  STATUTE
OR OTHERWISE, AND IN WHICH THE PLAINTIFF OR PLAINTIFFS SEEK NON-ECONOMIC
AND/OR  ACTUAL  ECONOMIC  DAMAGES AS A RESULT OF THE NEGLIGENCE OR OTHER
MISCONDUCT OF THE ATTENDING PHYSICIAN OR MIDWIFE  WHICH  IS  ALLEGED  TO
HAVE  CAUSED  AN  INJURY  TO  AN INFANT PRIOR TO, DURING, OR IMMEDIATELY
AFTER HIS OR HER BIRTH OR DELIVERY.
  2. "ATTENDING  PHYSICIAN"  MEANS  AN  OBSTETRICIAN-GYNECOLOGIST  OR  A
PHYSICIAN ENGAGED IN FAMILY PRACTICE WHOSE PROFESSIONAL LIABILITY INSUR-
ANCE CLASSIFICATION INCLUDES OBSTETRICS.
  3.  "MIDWIFE"  MEANS A MIDWIFE WHO IS LICENSED UNDER THE PROVISIONS OF
ARTICLE ONE HUNDRED FORTY OF THE EDUCATION LAW AND WHO HAS ENTERED  INTO
A  WRITTEN  AGREEMENT  WITH  AN  ATTENDING  PHYSICIAN AS PROVIDED FOR IN
SECTION SIX THOUSAND NINE HUNDRED FIFTY-ONE OF SUCH ARTICLE.
  4. "NON-ECONOMIC  DAMAGES"  MEANS  SUBJECTIVE,  NON-PECUNIARY  DAMAGES
ARISING  FROM  PAIN,  SUFFERING,  INCONVENIENCE,  PHYSICAL IMPAIRMENT OR
DISFIGUREMENT, MENTAL ANGUISH, EMOTIONAL DISTRESS, LOSS OF  SOCIETY  AND
COMPANIONSHIP, LOSS OF CONSORTIUM, INJURY TO REPUTATION, HUMILIATION AND
ANY OTHER NON-PECUNIARY DAMAGES, HOWEVER IDENTIFIED.
  5.  "ACTUAL  ECONOMIC  DAMAGES" MEANS OBJECTIVELY VERIFIABLE PECUNIARY
DAMAGES ARISING FROM LOSS  OF  EARNINGS  AND  EARNING  CAPACITY,  BURIAL
COSTS,  AND  ANY  OTHER  PECUNIARY  DAMAGES HOWEVER IDENTIFIED PROVIDED,
HOWEVER, THAT SUCH TERM SHALL NOT INCLUDE THE COST OF ANY MEDICAL  CARE,
TREATMENT  OR  SERVICES, INCLUDING CUSTODIAL CARE, WHICH MAY BE REQUIRED
TO BE PROVIDED IN THE FUTURE TO ANY INJURED PLAINTIFF.
  S 7581. APPLICABILITY. THE PROVISIONS OF THIS ARTICLE SHALL  APPLY  TO
ALL  CLAIMS  FOR  DAMAGES IN A PERSONAL INJURY ACTION RESULTING FROM THE
NEGLIGENCE OR OTHER MISCONDUCT OF AN ATTENDING PHYSICIAN OR A MIDWIFE AT
THE BIRTH OF AN INFANT, WHOSE NEGLIGENCE OR  MISCONDUCT  IS  ALLEGED  TO
HAVE  CAUSED  INJURY TO AN INFANT PRIOR TO, DURING, OR IMMEDIATELY AFTER
HIS OR HER BIRTH OR DELIVERY AND ALL OTHER CLAIMS,  CROSS-CLAIMS,  COUN-
TER-CLAIMS,  AND CLAIMS FOR CONTRIBUTION AND INDEMNITY ARISING FROM SUCH
CLAIM.
  S 7582. LIMITATION ON LIABILITY. 1.  IN  ANY  PERSONAL  INJURY  ACTION
SUBJECT TO THE PROVISIONS OF THIS SECTION, WHERE THE DETERMINATION AS TO
THE  AMOUNT OF DAMAGES TO BE AWARDED TO A SUCCESSFUL PLAINTIFF OR PLAIN-
TIFFS IS DETERMINED BY A JUDGE OR JURY  UPON  A  VERDICT,  THE  PERSONAL
LIABILITY OF THE ATTENDING PHYSICIAN OR MIDWIFE FOR NON-ECONOMIC DAMAGES
AND  ACTUAL ECONOMIC DAMAGES SUFFERED BY THE INJURED PLAINTIFF OR PLAIN-
TIFFS, IN THE AGGREGATE, SHALL NOT EXCEED  TWO  HUNDRED  FIFTY  THOUSAND
DOLLARS  WHERE THE BOARD OF TRUSTEES OF THE IMPAIRED INFANT COMPENSATION
FUND DETERMINES THAT THE AMOUNT IN EXCESS  OF  SUCH  TWO  HUNDRED  FIFTY
THOUSAND   DOLLARS   LIABILITY   SHALL   BE  PAID  PURSUANT  TO  SECTION
EIGHTY-FOUR-B OF THE STATE FINANCE LAW. NO PART OF THE  PERSONAL  ASSETS
OF  ANY  PHYSICIAN OR MIDWIFE WHICH EXCEEDS SUCH TWO HUNDRED FIFTY THOU-
SAND DOLLAR LIMITATION SHALL BE SUBJECT TO ANY JUDGMENT RENDERED  IN  AN
ACTION WHERE THE EXCESS AMOUNT IS PAID BY THE FUND. WHERE THE VERDICT OF
THE  JUDGE OR JURY AWARDS DAMAGES IN AN AMOUNT WHICH EXCEEDS TWO HUNDRED

S. 2744                             3

FIFTY THOUSAND DOLLARS, AND THE BOARD OF TRUSTEES OF  SUCH  FUND  DETER-
MINES THAT SUCH EXCESS AMOUNT SHALL NOT BE PAYABLE FROM SUCH FUND, THERE
SHALL  BE  NO  LIMIT ON SUCH PHYSICIAN'S OR MIDWIFE'S LIABILITY AND SUCH
VERDICT  AS  TO  DAMAGES  SHALL PROCEED FOR ASSESSMENT AND COLLECTION AS
OTHERWISE PROVIDED BY LAW. EXCEPT AS AUTHORIZED IN SECTION  SEVEN  THOU-
SAND  FIVE  HUNDRED  EIGHTY-THREE  OF THIS ARTICLE, NO PART OF ANY AWARD
WHETHER DEEMED PART OF THE PERSONAL LIABILITY OF THE ATTENDING PHYSICIAN
OR MIDWIFE PAID FROM THE IMPAIRED INFANT COMPENSATION FUND SHALL INCLUDE
ANY AMOUNT ATTRIBUTABLE TO MEDICAL CARE, TREATMENT OR SERVICES,  INCLUD-
ING  CUSTODIAL  CARE, WHICH MAY BE REQUIRED TO BE PROVIDED IN THE FUTURE
TO ANY INJURED PLAINTIFF.
  2. THE PROVISIONS OF SECTION SEVEN THOUSAND FIVE HUNDRED  EIGHTY-THREE
OF  THIS  ARTICLE  SHALL APPLY TO ANY PERSONAL INJURY ACTION WHICH WOULD
OTHERWISE BE SUBJECT TO THE PROVISIONS OF THIS ARTICLE WHERE THE  DETER-
MINATION  AS  TO  THE  AMOUNT OF DAMAGES TO BE AWARDED IS MADE BY MUTUAL
AGREEMENT OF THE PARTIES OR SETTLEMENT TO THE ACTION AGREED  UPON  PRIOR
TO THE RENDERING OF A VERDICT BY THE JUDGE OR JURY.
  S  7583.  SETTLEMENT  PROCEEDINGS.  1.  THE PROVISIONS OF THIS SECTION
SHALL APPLY TO ANY PERSONAL  INJURY  ACTION  OTHERWISE  SUBJECT  TO  THE
PROVISIONS  OF  THIS ARTICLE WHERE THE DETERMINATION AS TO THE AMOUNT OF
DAMAGES TO BE AWARDED IS MADE BY MUTUAL  AGREEMENT  OF  THE  PARTIES  OR
SETTLEMENT  TO  THE  ACTION AGREED UPON AFTER COMMENCEMENT OF THE ACTION
BUT PRIOR TO THE RENDERING OF A VERDICT BY JUDGE OR JURY.
  2. IN ANY SUCH ACTION AS PROVIDED  FOR  IN  SUBDIVISION  ONE  OF  THIS
SECTION,  PRIOR  TO  THE  RENDERING OF A VERDICT BY A JUDGE OR JURY, THE
PARTIES TO THE ACTION MAY APPLY TO THE BOARD OF TRUSTEES OF THE IMPAIRED
INFANT COMPENSATION FUND AND REQUEST SUCH BOARD TO INTERCEDE  AND  FULLY
PARTICIPATE  IN  PROCEEDINGS  TO  DETERMINE  THE AMOUNT OF DAMAGES TO BE
AWARDED BY MUTUAL AGREEMENT OR SETTLEMENT. UPON FILING OF SUCH  REQUEST,
THE  BOARD  SHALL  ASSIGN  A  DESIGNEE TO REPRESENT IT AND SUCH DESIGNEE
SHALL, SUBJECT TO THE APPROVAL OF THE BOARD, BE EMPOWERED TO SO  PARTIC-
IPATE  AND  BE  PRESENT AT ALL DISCUSSIONS APPERTAINING TO A SETTLEMENT.
WITH THE AGREEMENT OF ALL THE PARTIES, THE COURT AND THE FUND, THE  FUND
MAY  AGREE  TO  PAY A PLAINTIFF OR PLAINTIFFS AN AMOUNT IN THE AGGREGATE
NOT TO EXCEED TWO MILLION FIFTY THOUSAND DOLLARS, OR WITH RESPECT  TO  A
PROFESSIONAL  SERVICES LIMITED LIABILITY COMPANY, A FOREIGN PROFESSIONAL
SERVICES LIMITED LIABILITY COMPANY, A REGISTERED LIMITED LIABILITY PART-
NERSHIP OR A NEW YORK REGISTERED FOREIGN LIMITED  LIABILITY  PARTNERSHIP
SEVEN  HUNDRED FIFTY THOUSAND DOLLARS, ABOVE THE TWO HUNDRED FIFTY THOU-
SAND DOLLAR LIMITATION PROVIDED  FOR  IN  SECTION  SEVEN  THOUSAND  FIVE
HUNDRED  EIGHTY-TWO  OF  THIS  ARTICLE FOR THE PURPOSES OF SETTLING SUCH
ACTION AND SUCH SETTLEMENT AMOUNT SHALL INCLUDE ACTUAL ECONOMIC  DAMAGES
AND  NON-ECONOMIC  DAMAGES INCLUDING MEDICAL TREATMENT CARE AND SERVICES
INCLUDING CUSTODIAL CARE WHICH MAY BE REQUIRED TO  BE  PROVIDED  IN  THE
FUTURE  TO  THE  INJURED  PLAINTIFF  AND PROVIDED WHERE THE PLAINTIFF OR
PLAINTIFFS AGREES TO ACCEPT SUCH SETTLEMENT AS OFFERED  BY  THE  PARTIES
AND  THE  FUND, HE SHALL BE DEEMED TO HAVE WAIVED ANY RIGHTS WHICH WOULD
ACCRUE PURSUANT TO SECTION THREE HUNDRED  SIXTY-NINE-NN  OF  THE  SOCIAL
SERVICES  LAW, AND UPON EXECUTING SUCH SETTLEMENT AGREEMENT, HE SHALL BE
INELIGIBLE FOR ANY BENEFITS THEREUNDER.
  3. WHERE THE FUND MAKES PAYMENT PURSUANT TO THE TERMS OF  THE  SETTLE-
MENT  IN  THE  AMOUNT AGREED UPON, THE TRUSTEES OF THE FUND SHALL REVIEW
ALL PERTINENT MEDICAL RECORDS,  INCLUDING  ALL  RECORDS,  TESTIMONY  AND
EVIDENCE  RELATING  TO THE ACTION TO DETERMINE WHETHER THE NEGLIGENCE OR
MISCONDUCT OF THE ATTENDING PHYSICIAN OR MIDWIFE WAS EGREGIOUS OR GROSS-
LY CONTRARY TO GENERALLY ACCEPTABLE MEDICAL STANDARDS. WHERE THE TRUSTEE

S. 2744                             4

MAKES A DETERMINATION THAT AN ATTENDING PHYSICIAN'S OR MIDWIFE'S CONDUCT
WAS EGREGIOUS OR GROSSLY CONTRARY TO ACCEPTABLE  MEDICAL  STANDARDS,  NO
PAYMENT  FROM  THE FUND FOR FUTURE CAUSES OF ACTION ACCRUING ON OR AFTER
THE DATE OF THE BOARD'S DETERMINATION SHALL THEREAFTER BE MADE EXCEPT AS
PROVIDED   FOR   IN   PARAGRAPH  (B)  OF  SUBDIVISION  FOUR  OF  SECTION
EIGHTY-FOUR-B OF THE STATE FINANCE LAW.
  S 7584. INSTRUCTIONS TO JURY. IN ANY JURY TRIAL, PRIOR  TO  COMMENCING
DELIBERATIONS IN A PERSONAL INJURY ACTION AGAINST AN ATTENDING PHYSICIAN
OR  MIDWIFE,  THE  COURT, UPON THE MOTION OF THE ATTORNEY FOR EITHER THE
PLAINTIFF OR THE DEFENDANT OR UPON ITS  OWN  INITIATIVE,  SHALL  MAKE  A
DETERMINATION   WHETHER  THE  PROCEEDING  IS  IN  FACT  SUBJECT  TO  THE
PROVISIONS OF SECTION SEVEN THOUSAND FIVE  HUNDRED  EIGHTY-TWO  OF  THIS
ARTICLE. IF SO DETERMINED IN THE AFFIRMATIVE, IT SHALL INSTRUCT THE JURY
THAT  IN  DETERMINING  THE  AMOUNT  OF THE ACTUAL ECONOMIC DAMAGES TO BE
INCLUDED IN SUCH VERDICT, IF ANY, THEY MUST NOT INCLUDE ANY AMOUNT WHICH
WOULD BE ATTRIBUTABLE TO MEDICAL CARE, TREATMENT OR SERVICES,  INCLUDING
CUSTODIAL CARE WHICH MAY BE REQUIRED TO BE PROVIDED IN THE FUTURE TO ANY
INJURED PLAINTIFF AND IT SHALL FURTHER INFORM THEM OF THE APPLICATION OF
TITLE ELEVEN-E OF ARTICLE FIVE OF THE SOCIAL SERVICES LAW.
  S  2. The state finance law is amended by adding a new section 84-b to
read as follows:
  S 84-B. IMPAIRED INFANT COMPENSATION FUND. 1. THERE IS  HEREBY  ESTAB-
LISHED IN THE CUSTODY OF THE STATE COMPTROLLER A FUND TO BE KNOWN AS THE
IMPAIRED INFANT COMPENSATION FUND.
  2.  A  BOARD  OF  TRUSTEES AS HEREIN CONSTITUTED SHALL ADMINISTER SUCH
FUND.  SUCH BOARD SHALL CONSIST OF NINE MEMBERS APPOINTED BY THE  GOVER-
NOR,  SIX  OF  WHOM  SHALL BE BOARD CERTIFIED OBSTETRICIAN-GYNECOLOGISTS
LICENSED TO PRACTICE SUCH SPECIALTY IN THIS STATE AND CURRENTLY  ENGAGED
IN  ACTIVE  PRACTICE IN SUCH SPECIALTY AT THE TIME OF THEIR APPOINTMENT.
TWO MEMBERS SHALL BE APPOINTED UPON THE RECOMMENDATION OF THE  TEMPORARY
PRESIDENT  OF THE SENATE, TWO MEMBERS SHALL BE APPOINTED UPON THE RECOM-
MENDATION OF THE SPEAKER OF THE ASSEMBLY, ONE MEMBER SHALL BE  APPOINTED
UPON  THE  RECOMMENDATION  OF  THE MINORITY LEADER OF THE SENATE AND ONE
MEMBER SHALL BE APPOINTED UPON THE RECOMMENDATION OF THE MINORITY LEADER
OF THE ASSEMBLY. THREE OF THE MEMBERS APPOINTED  BY  THE  GOVERNOR  (NOT
UPON  THE  RECOMMENDATION  OF  A  LEGISLATIVE  LEADER)  AND  THE MEMBERS
APPOINTED UPON THE RECOMMENDATION OF  THE  TEMPORARY  PRESIDENT  OF  THE
SENATE  AND  THE SPEAKER OF THE ASSEMBLY RESPECTIVELY, SHALL BE LICENSED
AND CURRENTLY ENGAGED AS HEREINABOVE PROVIDED. THE GOVERNOR SHALL DESIG-
NATE ONE OF THE MEMBERS OF THE BOARD AS CHAIRPERSON. THE TERM OF  OFFICE
OF  MEMBERS SHALL BE THREE YEARS, PROVIDED, HOWEVER, THAT OF THE MEMBERS
FIRST APPOINTED, THREE SHALL BE APPOINTED FOR TERMS EXPIRING ON DECEMBER
THIRTY-FIRST, TWO THOUSAND TEN,  THREE  SHALL  BE  APPOINTED  FOR  TERMS
EXPIRING  ON  DECEMBER THIRTY-FIRST, TWO THOUSAND ELEVEN AND THREE SHALL
BE APPOINTED FOR TERMS EXPIRING ON DECEMBER THIRTY-FIRST,  TWO  THOUSAND
TWELVE.  TWO  OF  THE  THREE MEMBERS WHOSE TERMS EXPIRE ON SUCH DECEMBER
THIRTY-FIRST IN TWO THOUSAND TEN, TWO THOUSAND ELEVEN AND  TWO  THOUSAND
TWELVE  RESPECTIVELY  SHALL  ALSO BE LICENSED AND ENGAGED AS HEREINABOVE
PROVIDED. VACANCIES SHALL BE FILLED IN THE MANNER OF  ORIGINAL  APPOINT-
MENT FOR THE REMAINDER OF THE TERM. THE MEMBERS SHALL RECEIVE NO COMPEN-
SATION FOR THEIR SERVICES, BUT SHALL BE ENTITLED TO RECEIVE THEIR ACTUAL
AND NECESSARY EXPENSES INCURRED IN THE PERFORMANCE OF THEIR DUTIES.
  3.  THE  FUND  SHALL CONSIST OF ALL MONEYS APPROPRIATED OR TRANSFERRED
THERETO BY LAW, ALL MONEYS ASSESSED OR COLLECTED AS PROVIDED BY LAW  AND
MADE  AVAILABLE  TO  THE  FUND,  AND ANY OTHER MONEYS, GIFTS OR BEQUESTS
DEPOSITED INTO THE FUND. NO PHYSICIAN, REGARDLESS OF MEDICAL  SPECIALTY,

S. 2744                             5

LICENSED  TO PRACTICE IN THIS STATE NOR ANY MIDWIFE LICENSED TO PRACTICE
IN THIS STATE SHALL BE REQUIRED TO PAY ANY FEE,  ASSESSMENT,  SURCHARGE,
TAX  OR  OTHER  OBLIGATION  HOWEVER IDENTIFIED AS A MEANS OF PROVIDING A
SOURCE OF REVENUE FOR SUCH FUND.
  4.(A)  IN ANY PERSONAL INJURY ACTION AGAINST AN ATTENDING PHYSICIAN OR
A MIDWIFE SUBJECT TO THE PROVISIONS OF  ARTICLE  SEVENTY-FIVE-B  OF  THE
CIVIL  PRACTICE  LAW  AND RULES, THE REASONABLENESS OF THE AMOUNT OF ANY
VERDICT RENDERED AGAINST AN ATTENDING PHYSICIAN OR A  MIDWIFE  SHALL  BE
SUBJECT  TO  AUTOMATIC  APPEAL  TO THE APPELLATE DIVISION OF THE SUPREME
COURT IN THE DEPARTMENT WHEREIN THE  UNDERLYING  VERDICT  WAS  RENDERED.
WHERE,  AFTER  APPEAL, THE AMOUNT OF DAMAGES TO BE AWARDED TO THE PLAIN-
TIFF OR PLAINTIFFS AS DETERMINED BY A JUDGE OR JURY, AND AFTER REVIEW BY
THE APPELLATE DIVISION, IS DETERMINED TO BE  GREATER  THAN  TWO  HUNDRED
FIFTY  THOUSAND  DOLLARS, THE APPELLATE DIVISION SHALL NOTIFY THE CHAIR-
PERSON OF THE FUND OF THE AMOUNT OF SUCH VERDICT WITHIN FIVE DAYS  AFTER
IT IS RENDERED. TOGETHER WITH SUCH NOTIFICATION, THE COURT SHALL PROVIDE
THE  BOARD  WITH  A  TRANSCRIPT  OF THE TRIAL TESTIMONY AND ANY EVIDENCE
PRESENTED AT THE TRIAL. WITHIN THIRTY DAYS AFTER SUCH NOTIFICATION,  THE
BOARD  SHALL  PAY  THE  AMOUNT  IN  EXCESS OF TWO HUNDRED FIFTY THOUSAND
DOLLARS TO THE SUCCESSFUL PLAINTIFF OR PLAINTIFFS. WHERE  HOWEVER,  UPON
REVIEW OF THE TRANSCRIPT AND EVIDENCE SO SUBMITTED, THE BOARD DETERMINES
THAT  THE NEGLIGENCE OR MISCONDUCT OF THE ATTENDING PHYSICIAN OR MIDWIFE
WAS SO EGREGIOUS OR GROSSLY CONTRARY  TO  GENERALLY  ACCEPTABLE  MEDICAL
STANDARDS  OF CARE, NO PAYMENT FROM THE FUND FOR FUTURE CAUSES OF ACTION
ACCRUING ON AND AFTER THE DATE OF THE  BOARD'S  DETERMINATION  SHALL  BE
MADE, EXCEPT AS PROVIDED FOR IN PARAGRAPH (B) OF THIS SUBDIVISION. WHERE
PAYMENT  FROM  THE  FUND  IS  DENIED FOR ANY SUCH FUTURE CAUSE OF ACTION
BECAUSE OF THE BOARD'S DETERMINATION IN A PRIOR CAUSE OF ACTION THAT  AN
ATTENDING  PHYSICIAN'S  OR MIDWIFE'S CONDUCT WAS SO EGREGIOUS OR GROSSLY
CONTRARY TO GENERALLY ACCEPTABLE MEDICAL STANDARDS OF CARE,  THE  PLAIN-
TIFF  OR  PLAINTIFF'S  VERDICT  AS  RENDERED  BY THE JUDGE OR JURY SHALL
STAND, AND SHALL BE SUBJECT TO ASSESSMENT AND COLLECTION  PROCEDURES  AS
OTHERWISE  APPLICABLE TO JUDGMENTS RENDERED IN ACCORDANCE WITH ALL OTHER
APPROPRIATE PROVISIONS OF LAW.
  (B) WHERE, AS PROVIDED FOR IN PARAGRAPH (A) OF THIS SUBDIVISION OR  IN
THE  COURSE  OF PARTICIPATING IN A SETTLEMENT PROCEEDING AS PROVIDED FOR
IN SECTION SEVEN THOUSAND FIVE HUNDRED EIGHTY-THREE OF THE  CIVIL  PRAC-
TICE LAW AND RULES, THE BOARD HAS MADE A DETERMINATION THAT AN ATTENDING
PHYSICIAN'S OR MIDWIFE'S CONDUCT WAS SO EGREGIOUS OR GROSSLY CONTRARY TO
ACCEPTABLE  MEDICAL STANDARDS, SUCH ATTENDING PHYSICIAN OR MIDWIFE SHALL
BE THEREAFTER PERMANENTLY BARRED FROM PARTICIPATING IN THE  BENEFITS  OF
THE  FUND  FOR  ANY  CAUSE OF ACTION OCCURRING ON OR AFTER THE DATE SUCH
DECISION TO DENY PAYMENT IS RENDERED. HOWEVER,  ON  OR  AFTER  THE  DATE
OCCURRING FIVE YEARS AFTER THE DATE SUCH DECISION IS RENDERED AN ATTEND-
ING  PHYSICIAN  OR  MIDWIFE  MAY APPLY TO THE BOARD FOR A CERTIFICATE OF
REINSTATEMENT WHICH, IF GRANTED SHALL PERMIT THE ATTENDING PHYSICIAN  OR
MIDWIFE  TO  RESUME  PARTICIPATION IN THE BENEFITS ACCORDED BY THE FUND.
SUCH CERTIFICATE SHALL BE GRANTED BY THE BOARD ONLY WHERE IT  DETERMINES
THAT  AFTER  A  REVIEW  AND  ASSESSMENT OF SUCH ATTENDING PHYSICIAN'S OR
MIDWIFE'S PROFESSIONAL CONDUCT AND HIS OR HER  DEMONSTRATED  PROFICIENCY
IN  THE PROVISION OF MEDICAL SERVICES DURING SUCH PERIOD AFTER DISQUALI-
FICATION AND PRIOR  TO  THE  DATE  OF  REAPPLICATION,  REINSTATEMENT  IS
WARRANTED.
  5. WHERE, IN ANY PERSONAL INJURY ACTION AGAINST AN ATTENDING PHYSICIAN
OR  MIDWIFE WHICH HAS BEEN REFERRED TO THE BOARD, ANY PARTY HAS APPEALED
THE VERDICT RENDERED BY THE TRIAL COURT, UPON NOTIFICATION OF THE FILING

S. 2744                             6

OF SUCH APPEAL BY THE COURT, THE ACTIONS OF THE BOARD  SHALL  BE  STAYED
PENDING  THE DETERMINATION OF THE APPELLATE COURT. WHEN ALL APPEALS HAVE
BEEN EXHAUSTED, THE BOARD SHALL THEN COMMENCE AND MAKE ITS DETERMINATION
AS PROVIDED FOR IN THIS SECTION.
  6.  ALL  PAYMENTS FROM THE FUND SHALL BE MADE ON THE AUDIT AND WARRANT
OF THE STATE COMPTROLLER, ON  VOUCHERS  CERTIFIED  OR  APPROVED  IN  THE
MANNER  PROVIDED  BY  LAW WITHIN THIRTY DAYS OF THE DETERMINATION OF THE
BOARD, A COPY OF WHICH DETERMINATION SHALL BE TRANSMITTED TO  THE  COURT
OF RECORD, ALL OF THE PARTIES TO THE ACTION, AND THEIR ATTORNEYS.
  7. EXCEPT AS PROVIDED FOR IN PARAGRAPH (A) OF SUBDIVISION FOUR OF THIS
SECTION,  THE  DECISION  OF  THE  BOARD  SHALL BE FINAL AND SHALL NOT BE
SUBJECT TO FURTHER ADMINISTRATIVE  REVIEW  OR  APPEAL.  PAYMENT  OF  THE
INITIAL  TWO  HUNDRED  FIFTY  THOUSAND  DOLLARS BY, OR ON BEHALF OF, THE
ATTENDING PHYSICIAN OR MIDWIFE AND SUCH EXCESS  AMOUNT  FROM  SUCH  FUND
SHALL  CONSTITUTE  A  FULL SATISFACTION OF SUCH JURY'S VERDICT AND SHALL
DISCHARGE THE DEFENDANT FROM ANY  FURTHER  CLAIM  FOR  DAMAGES  IN  SUCH
ACTION.  NOTWITHSTANDING  ANY OTHER PROVISION OF LAW, NO OTHER DEFENDANT
IN A PERSONAL INJURY ACTION AGAINST AN ATTENDING PHYSICIAN OR A  MIDWIFE
SHALL  BE JOINTLY AND SEVERALLY LIABLE FOR ANY AMOUNT OF A VERDICT WHICH
WOULD OTHERWISE BE ASSESSABLE AGAINST HIM WHERE PAYMENTS HAVE BEEN  MADE
FROM THE FUND IN SUCH AN ACTION.
  S  3.  Article 5 of the social services law is amended by adding a new
title 11-E to read as follows:
                                TITLE 11-E
                   MEDICAL EXPENSES OF CERTAIN INFANTS
SECTION 369-LL. DEFINITIONS.
        369-MM. ESTABLISHMENT OF PROGRAM.
        369-NN. PROGRAM ELIGIBILITY AND OPERATIONS.
        369-OO. RELATIONSHIP OF PROGRAM TO MEDICAL ASSISTANCE PROGRAM.
  S 369-LL. DEFINITIONS. AS USED IN THIS SECTION:
  1. "IMPAIRED INFANT" SHALL MEAN A PERSON, WHO IS INJURED AS  A  RESULT
OF  THE  NEGLIGENCE  OR  OTHER  MISCONDUCT  OF AN ATTENDING PHYSICIAN OR
MIDWIFE AND WHO HAS BEEN AWARDED DAMAGES IN AN ACTION WHICH  WAS  DETER-
MINED  TO  BE  SUBJECT  TO THE PROVISIONS OF SECTION SEVEN THOUSAND FIVE
HUNDRED EIGHTY-TWO OF THE CIVIL PRACTICE LAW AND RULES.
  2. "MEDICAL AND OTHER RELATED  COSTS"  MEANS  ANY  COSTS  INCURRED  IN
PROVIDING  MEDICAL  SERVICES  AND  ANY  APPROPRIATE CUSTODIAL CARE TO AN
IMPAIRED INFANT DURING HIS OR HER LIFETIME.
  3. "PROGRAM"  MEANS  THE  MEDICAL  CARE  AND  ASSISTANCE  PROGRAM  FOR
IMPAIRED  INFANTS  AS ESTABLISHED IN SECTION THREE HUNDRED SIXTY-NINE-MM
OF THIS TITLE.
  S 369-MM. ESTABLISHMENT OF PROGRAM. 1.  THERE  IS  HEREBY  ESTABLISHED
WITHIN  THE  OFFICE  OF  TEMPORARY AND DISABILITY ASSISTANCE THE MEDICAL
CARE AND ASSISTANCE PROGRAM FOR IMPAIRED INFANTS.
  2. NOTWITHSTANDING ANY INCONSISTENT PROVISION OF LAW, THE COMMISSIONER
OF SUCH OFFICE, SUBJECT TO THE APPROVAL OF THE DIRECTOR OF  THE  BUDGET,
MAY  APPLY  FOR  APPROPRIATE WAIVERS UNDER FEDERAL LAW AND REGULATION IF
NECESSARY OR TAKE OTHER ACTIONS AS MAY BE  REQUIRED  TO  SECURE  FEDERAL
FINANCIAL PARTICIPATION IN THE COSTS OF THE PROGRAM; MAY WAIVE OR MODIFY
ANY PROVISIONS OF THIS CHAPTER OR REGULATION TO IMPLEMENT THIS TITLE; OR
MAY PROMULGATE SUCH REGULATIONS AS NECESSARY TO IMPLEMENT THIS TITLE.
  S  369-NN.  PROGRAM  ELIGIBILITY AND OPERATIONS. 1. IN ACCORDANCE WITH
REGULATIONS OF THE COMMISSIONER, A LOCAL SOCIAL SERVICES DISTRICT  SHALL
PAY  ALL  OF THE MEDICAL AND OTHER RELATED COSTS, INCURRED ON BEHALF OF,
OR IN CONNECTION WITH THE SUPPORT OF,  AN  IMPAIRED  INFANT  DURING  THE
ENTIRETY OF SUCH INFANT'S LIFETIME.

S. 2744                             7

  2.  FOR  PURPOSES  OF  DETERMINING  ELIGIBILITY  UNDER THIS TITLE, ANY
RESOURCES AVAILABLE TO SUCH INFANT, OR SUCH INFANT'S HOUSEHOLD SHALL NOT
BE CONSIDERED NOR REQUIRED TO BE APPLIED TO THE PAYMENT OF SUCH  MEDICAL
AND OTHER RELATED COSTS.
  S  369-OO.  RELATIONSHIP  OF  PROGRAM  TO  MEDICAL ASSISTANCE PROGRAM.
NOTWITHSTANDING ANY INCONSISTENT PROVISION OF LAW, EXPENDITURES INCURRED
BY LOCAL SOCIAL SERVICES DISTRICTS UNDER THIS TITLE RELATED  TO  PROGRAM
EXPENSES  SHALL  BE CONSIDERED EXPENDITURES UNDER THE PROGRAM OF MEDICAL
ASSISTANCE FOR NEEDY PERSONS UNDER TITLE  ELEVEN  OF  THIS  ARTICLE  AND
THERE  SHALL  BE  PAID TO EACH SUCH DISTRICT FIFTY PERCENT OF THE AMOUNT
EXPENDED BY SUCH DISTRICT UNDER THIS TITLE, AND FOR  THE  ADMINISTRATION
THEREOF,  AFTER  FIRST  DEDUCTING  THEREFROM  ANY FEDERAL FUNDS PROPERLY
RECEIVED OR TO BE RECEIVED ON ACCOUNT THEREOF.
  S 4. Paragraph (e) of subdivision 1 of section 2995-a  of  the  public
health  law  is  amended  by  adding  a new subparagraph (iv) to read as
follows:
  (IV) A STATEMENT INDICATING WHETHER A PHYSICIAN OR  MIDWIFE  HAS  BEEN
DISQUALIFIED  AND IS INELIGIBLE FOR THE BENEFITS OF PARTICIPATING IN THE
IMPAIRED INFANT COMPENSATION FUND PROGRAM ESTABLISHED IN SECTION  EIGHT-
Y-FOUR-B  OF  THE STATE FINANCE LAW, AS A RESULT OF CONDUCT DEEMED EGRE-
GIOUS OR GROSSLY CONTRARY TO GENERALLY ACCEPTABLE MEDICAL STANDARDS;
  S 5. Section 230 of the public health law is amended by adding  a  new
subdivision 10-a to read as follows:
  10-A.  SPECIAL  PROVISIONS  RELATING  TO EXPERT WITNESSES. IN CASES OF
MEDICAL MISCONDUCT BASED UPON AN ALLEGATION THAT THE TESTIMONY GIVEN  BY
A  PERSON  WHO TESTIFIES AS AN EXPERT WITNESS FAILS TO MEET PROFESSIONAL
CLINICAL STANDARDS ACCEPTABLE TO THE OFFICE, THE OFFICE, IN ADDITION  TO
ANY  OTHER  PENALTY  OR SANCTION OTHERWISE PERMITTED, MAY IMPOSE A CIVIL
PENALTY OF NOT LESS THAN FIFTY THOUSAND DOLLARS AGAINST THE WITNESS,  OR
SUSPEND  OR PERMANENTLY REVOKE SUCH WITNESS' LICENSE TO PRACTICE IN THIS
STATE. SUCH A PROCEEDING SHALL BE GIVEN PRIORITY BY THE BOARD,  AND  THE
BOARD  SHALL  RENDER A DECISION WITHIN NINETY DAYS AFTER A COMPLAINT HAS
BEEN RECEIVED.
  S 6. Severability. If any clause, sentence, paragraph, subdivision  or
part  of  this  act, or the application thereof to any person or circum-
stance, shall be adjudged by any court of competent jurisdiction  to  be
invalid  or  unconstitutional, such judgment shall not affect, impair or
invalidate the remainder thereof, but shall be confined in its operation
to the clause, sentence, paragraph, subdivision or part of this act,  or
in  its  application to the person or circumstance, directly involved in
the controversy in which such judgment shall have been rendered.
  S 7. This act shall take effect immediately and  shall  apply  to  any
cause  of  action  which  (i) has accrued prior to such date for which a
verdict has not yet been rendered, or (ii)  accrues  on  or  after  such
date.