Senate Bill S223

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

                                   223

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- 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 amount of awards in medical malpractice lawsuits; and to amend
  the  insurance  law,  in  relation  to establishing the excess medical
  malpractice liability fund

  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 50-C to read as follows:
                              ARTICLE 50-C
       LIMITATION ON DAMAGE AWARDS IN MEDICAL MALPRACTICE LAWSUITS
SECTION 5051. DEFINITIONS.
        5052. LIMITATION ON DAMAGE AWARDS.
  S 5051. DEFINITIONS. AS USED IN THIS ARTICLE:
  1. "NONECONOMIC DAMAGES" MEANS NONPECUNIARY 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 ALL OTHER NONPECUNIARY
DAMAGES.
  2.  "ACTUAL  ECONOMIC  DAMAGES" MEANS OBJECTIVELY VERIFIABLE PECUNIARY
DAMAGES ARISING FROM MEDICAL EXPENSES AND MEDICAL CARE, LOSS OF EARNINGS
AND EARNING CAPACITY, BURIAL COSTS, LOSS OF USE  OF  PROPERTY,  LOSS  OF
GUIDANCE, COSTS OF REPAIR OR REPLACEMENT OF PROPERTY, COSTS OF OBTAINING
SUBSTITUTE  DOMESTIC  SERVICES,  LOSS OF EMPLOYMENT, LOSS OF BUSINESS OR
EMPLOYMENT OPPORTUNITIES, REHABILITATION SERVICES,  CUSTODIAL  CARE  AND
ALL OTHER PECUNIARY DAMAGES.
  3.  "PERSONAL  INJURY  ACTION"  MEANS  ANY ACTION, INCLUDING BUT IN NO
MANNER LIMITED TO MEDICAL, DENTAL  AND  PODIATRIC  MALPRACTICE  ACTIONS,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02819-01-9
              

S. 223                              2

WHETHER  IN  TORT,  CONTRACT  OR OTHERWISE, IN WHICH THE PLAINTIFF SEEKS
DAMAGES FOR INJURY TO THE PERSON OR WRONGFUL DEATH.
  4.  "COMPENSATION AWARD" MEANS THE TOTAL AMOUNT OF NONECONOMIC DAMAGES
AND ACTUAL ECONOMIC DAMAGES AWARDED TO A PREVAILING PLAINTIFF.
  S 5052. LIMITATION ON DAMAGE AWARDS. IN ANY  PERSONAL  INJURY  ACTION,
THE  PREVAILING PLAINTIFF OR PERSON WHO CLAIMS INJURY BY OR THROUGH SUCH
INJURED PLAINTIFF SHALL NOT RECEIVE A COMPENSATION AWARD WHICH  EXCEEDS:
(I)  THE  TOTAL  AMOUNT  OF  THE  MEDICAL MALPRACTICE POLICY HELD BY THE
DEFENDANT; OR (II) THE SUM OF THE TOTAL AMOUNT OF THE  MEDICAL  MALPRAC-
TICE POLICIES HELD BY THE DEFENDANTS, IN CASES OF JOINT LIABILITY.
  S 2. The insurance law is amended by adding a new section 5518 to read
as follows:
  S  5518. EXCESS MEDICAL MALPRACTICE LIABILITY FUND. 1. THERE IS HEREBY
ESTABLISHED THE EXCESS MEDICAL MALPRACTICE LIABILITY FUND TO PROVIDE FOR
THE PAYMENT OF CLAIMS OF LIABILITY RELATED TO LOSS, DAMAGE,  OR  EXPENSE
INCIDENT TO SUCH CLAIMS ARISING OUT OF THE DEATH OR INJURY OF ANY PERSON
DUE TO MEDICAL, DENTAL, PODIATRIC, CERTIFIED NURSE-MIDWIFERY OR HOSPITAL
MALPRACTICE  BY  ANY  LICENSED PHYSICIAN, DENTIST, PODIATRIST, CERTIFIED
NURSE-MIDWIFE, CERTIFIED REGISTERED NURSE ANESTHETIST OR HOSPITAL.
  2. IN ACCORDANCE WITH REGULATIONS PRESCRIBED  BY  THE  SUPERINTENDENT,
EACH  INSURER  PROVIDING  POLICIES  OF MEDICAL MALPRACTICE INSURANCE, AS
DEFINED IN SECTION FIVE THOUSAND FIVE HUNDRED ONE OF THIS ARTICLE, SHALL
REPORT EXCESS PROFIT, IF ANY, ON SUCH POLICIES TO THE DEPARTMENT. EXCESS
PROFIT SHALL BE A PROFIT BEYOND A PERCENTAGE RATE OF RETURN ON NET WORTH
ATTRIBUTABLE TO SUCH POLICIES, COMPUTED IN ACCORDANCE  WITH  REGULATIONS
PROMULGATED  PURSUANT  TO THE PROVISIONS OF ARTICLE TWENTY-THREE OF THIS
CHAPTER, AND DETERMINED BY THE SUPERINTENDENT  TO  BE  SO  FAR  ABOVE  A
REASONABLE  AVERAGE PROFIT AS TO AMOUNT TO AN EXCESS PROFIT, TAKING INTO
CONSIDERATION THE FACT THAT LOSSES OR PROFITS BELOW A REASONABLE AVERAGE
PROFIT WILL NOT BE RECOUPED FROM THE POLICYHOLDERS.
  3. THE SUPERINTENDENT SHALL DIRECT THAT EXCESS PROFIT AS DETERMINED IN
ACCORDANCE WITH SUBSECTION TWO OF THIS SECTION SHALL BE  DEPOSITED  INTO
THE  EXCESS MEDICAL MALPRACTICE LIABILITY FUND ESTABLISHED BY SUBSECTION
ONE OF THIS SECTION.
  4. THE SUPERINTENDENT SHALL HAVE JURISDICTION OVER THE EXCESS  MEDICAL
MALPRACTICE  LIABILITY  FUND AND SHALL PROMULGATE REGULATIONS TO PROVIDE
FOR THE PROCESSING OF APPLICABLE CLAIMS AND FOR THE DISTRIBUTION OF  THE
FUNDS AVAILABLE PURSUANT TO THIS SECTION.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law and shall apply to actions and policy periods
commenced  on  or  after  such  effective  date; provided, however, that
effective immediately, the addition, amendment and/or repeal of any rule
or regulation necessary for the implementation of this act on its effec-
tive date are authorized and directed to be made  and  completed  on  or
before such effective date.