Senate Bill S348

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

                                   348

                       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 Health

AN ACT to amend the public health law, the  county  law  and  the  civil
  practice  law  and  rules,  in relation to review and investigation of
  claims of professional medical misconduct or medical  malpractice  and
  requirements for the filing of such claims

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

  Section 1.  Section 230 of the public health law is amended by  adding
a new subdivision 12-a to read as follows:
  12-A.  (A)  UPON  RECEIPT  BY THE COMMISSIONER OF A REPORT IDENTIFYING
CLAIMS OF MEDICAL MALPRACTICE, AS REQUIRED BY PARAGRAPHS ONE AND TWO  OF
SUBSECTION  (B)  OF SECTION THREE HUNDRED FIFTEEN  OF THE INSURANCE LAW,
THE COMMISSIONER SHALL IMMEDIATELY REFER THE SAME TO THE STATE BOARD FOR
PROFESSIONAL MEDICAL CONDUCT FOR AN EXPEDITED REVIEW TO DETERMINE WHETH-
ER THE SAID CLAIMS INVOLVE PROFESSIONAL MISCONDUCT AS DEFINED BY  SUBDI-
VISIONS  THREE,  FOUR, FIVE AND SIX OF SECTION SIXTY-FIVE HUNDRED THIRTY
OF THE EDUCATION LAW. EACH SUCH CLAIM WHICH ALLEGES PROFESSIONAL MISCON-
DUCT, AS DEFINED IN SUBDIVISIONS THREE,  FOUR,  FIVE  AND  SIX  OF  SUCH
SECTION  SIXTY-FIVE  HUNDRED  THIRTY, SHALL BE REFERRED FOR AN EXPEDITED
INVESTIGATION IN ACCORDANCE WITH THE PROVISIONS OF  SUBDIVISION  TEN  OF
THIS SECTION.
  (B)  UPON  RECEIPT  BY  THE  COMMISSIONER  OF  A COPY OF A SUMMONS AND
COMPLAINT WHICH ALLEGES PROFESSIONAL MEDICAL MISCONDUCT  AND/OR  MEDICAL
MALPRACTICE,  AS  REQUIRED  BY  SECTION  FIVE HUNDRED THIRTY-FIVE OF THE
COUNTY LAW, THE COMMISSIONER SHALL IMMEDIATELY REFER SAME TO  THE  STATE
BOARD  FOR  PROFESSIONAL  MEDICAL  CONDUCT,  FOR  AN EXPEDITED REVIEW TO
DETERMINE WHETHER SAID ALLEGATIONS INVOLVE  PROFESSIONAL  MISCONDUCT  AS
DEFINED  BY SUBDIVISIONS THREE, FOUR, FIVE AND SIX OF SECTION SIXTY-FIVE
HUNDRED THIRTY OF THE EDUCATION LAW. EACH  SUCH  SUMMONS  AND  COMPLAINT

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

                                                           LBD03095-01-9

S. 348                              2

WHICH  ALLEGES  PROFESSIONAL    MISCONDUCT,  AS  DEFINED IN SUBDIVISIONS
THREE, FOUR, FIVE AND SIX OF SUCH  SECTION  SIXTY-FIVE  HUNDRED  THIRTY,
SHALL  BE REFERRED FOR AN EXPEDITED INVESTIGATION IN ACCORDANCE WITH THE
PROVISIONS OF SUBDIVISION TEN OF THIS SECTION.
  S  2. The county law is amended by adding a new section 535 to read as
follows:
  S 535. REPORTING OF PROFESSIONAL  MEDICAL  MISCONDUCT  AND/OR  MEDICAL
MALPRACTICE.  UPON  THE  FILING OF A SUMMONS AND COMPLAINT WHICH ALLEGES
PROFESSIONAL MEDICAL MISCONDUCT AND/OR MEDICAL MALPRACTICE  PURSUANT  TO
SECTION  THREE  HUNDRED  FOUR  OF  THE CIVIL PRACTICE LAW AND RULES, THE
COUNTY CLERK SHALL FORWARD A COPY OF SAME TO THE COMMISSIONER OF HEALTH.
  S 3. Subdivision (a) of section 304 of  the  civil  practice  law  and
rules, as amended by chapter 125 of the laws of 2007, is amended to read
as follows:
  (a)  An  action  is  commenced  by  filing  a summons and complaint or
summons with notice in accordance with rule twenty-one  hundred  two  of
this chapter; EXCEPT THAT WHERE AN ACTION ALLEGES MEDICAL MALPRACTICE OR
PROFESSIONAL   MEDICAL  MISCONDUCT,  TWO  COPIES  OF  SAID  SUMMONS  AND
COMPLAINT MUST BE FILED WITH SAID CLERK OF THE COURT WITH  A  NOTICE  ON
THE  FRONT OF THE SUMMONS STATING THAT SUCH ACTION ALLEGES SUCH CONDUCT;
PROVIDED THAT A FAILURE TO FILE A SECOND  COPY  WITH  THE  COUNTY  CLERK
SHALL  NOT  BE GROUNDS FOR DISMISSAL OF ANY ACTION INITIATED PURSUANT TO
THIS CHAPTER; AND PROVIDED FURTHER THAT SAID FAILURE TO FILE SUCH SECOND
COPY SHALL NOT RELIEVE THE COUNTY CLERK FROM THE OBLIGATION TO FORWARD A
COPY OF THE FILED PLEADING TO THE  COMMISSIONER  OF  HEALTH.  A  special
proceeding  is  commenced  by  filing a petition in accordance with rule
twenty-one hundred two of this chapter. Where a court finds that circum-
stances prevent immediate filing, the signing of an order requiring  the
subsequent  filing  at a specific time and date not later than five days
thereafter shall commence the action.
  S 4. Section 304 of the civil practice law and rules,  as  amended  by
section  2  of  chapter  473  of the laws of 2001, is amended to read as
follows:
  S 304. Method of commencing action or special proceeding. An action is
commenced by filing a summons and  complaint  or  summons  with  notice;
EXCEPT  THAT WHERE AN ACTION ALLEGES MEDICAL MALPRACTICE OR PROFESSIONAL
MEDICAL MISCONDUCT, TWO COPIES OF SAID SUMMONS  AND  COMPLAINT  MUST  BE
FILED  WITH  SAID  CLERK  OF THE COURT WITH A NOTICE ON THE FRONT OF THE
SUMMONS STATING THAT SUCH ACTION ALLEGES SUCH CONDUCT; PROVIDED  THAT  A
FAILURE TO FILE A SECOND COPY WITH THE COUNTY CLERK SHALL NOT BE GROUNDS
FOR  DISMISSAL  OF  ANY  ACTION  INITIATED PURSUANT TO THIS CHAPTER; AND
PROVIDED FURTHER THAT SAID FAILURE TO FILE SUCH SECOND  COPY  SHALL  NOT
RELIEVE  THE  COUNTY  CLERK FROM THE OBLIGATION TO FORWARD A COPY OF THE
FILED PLEADING TO THE COMMISSIONER OF HEALTH.  A special  proceeding  is
commenced  by  filing a petition. Where a court finds that circumstances
prevent immediate filing, the signing of an order requiring  the  subse-
quent filing at a specific time and date not later than five days there-
after  shall  commence the action. For purposes of this section, and for
purposes of sections two hundred three and three hundred six-a  of  this
chapter,  filing  shall  mean  the  delivery of the summons with notice,
summons and complaint or petition to the clerk of the court in the coun-
ty in which the action or special proceeding is  brought  or  any  other
person  designated  by  the clerk of the court for that purpose together
with any fee required as specified in rule  twenty-one  hundred  two  of
this chapter for filing. At such time of filing, the original and a copy
of such papers shall be date stamped by a court clerk who shall file the

S. 348                              3

original  and  maintain a record of the date of the filing and who shall
immediately return the copy to the party who brought the filing.
  S 5. Paragraph 1 of subdivision (a) of section 8018 of the civil prac-
tice  law and rules, as amended by section 23 of part J of chapter 62 of
the laws of 2003, is amended to read as follows:
  1. A county clerk is entitled, for the assignment of an  index  number
to an action pending in a court of which he or she is clerk, to a fee of
one  hundred  ninety dollars, payable in advance; EXCEPT WHERE AN ACTION
ALLEGES MEDICAL MALPRACTICE OR PROFESSIONAL MISCONDUCT THE COUNTY  CLERK
IS  ENTITLED  TO  A  FEE OF ONE HUNDRED SEVENTY-FIVE DOLLARS, PAYABLE IN
ADVANCE.
  S 6. This act shall take effect on the one hundred eightieth day after
it shall have become a law; provided, however, that  the  amendments  to
section 304 of the civil practice law and rules made by section three of
this  act  shall  be  subject  to  the  expiration and reversion of such
section pursuant to section 10 of chapter 367 of the laws  of  1999,  as
amended,  when upon such date the provisions of section four of this act
shall take effect.