NY State Senate Bill 2017-S6804

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
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Delivered to Governor
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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to judiciary
Jun 18, 2017	referred to rules

2017-S6804 (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §3101, CPLR; amd §230, Pub Health L; amd §474-a, rpld subs 3, 4 & 5, Judy L

2017-S6804 (ACTIVE) - Summary

Relates to scope of disclosure for expert witnesses; grants immunity from liability to organizations which establish physician committees the purpose of which is to confront and refer to treatment physicians who are thought to be suffering from addiction or mental illness; and relates to the maximum allowable amount of contingency fees in medical, dental and podiatric malpractice actions and repeals certain provisions of law relating thereto.

2017-S6804 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S6804

SPONSOR: DEFRANCISCO
 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the scope of disclosure of certain experts; to amend the
public health law, in relation to granting immunity from liability to
organizations which establish physician committees; to amend the judici-
ary law, in relation to the maximum allowable amount of contingency fees
in medical, dental and podiatric malpractice actions; and to repeal
certain provisions of such law relating thereto

 
PURPOSE:

This bill would eliminate an exception that expressly allows a party,
when responding to a request, to omit the names of medical, dental or
podiatric experts. This bill would grant immunity to certain organiza-
tions that establish physician committees, and certain related individ-
uals. This bill would provide for a new, and increased, schedule of the
maximum allowable amount of contingency fees in medical, dental and
podiatric malpractice actions.

SUMMARY OF PROVISIONS:

Section one would amend 3101 of the civil practice law and rules to
eliminate an exception that expressly allows a party, when responding to
a request, to omit the names of medical, dental or podiatric experts.

Section two would amend the subdivision 11 of section 230 of the public
health law to grant immunity from liability to certain organizations and
certain agents, servants, representatives or employees which provide
services to such organizations that establish physician committees. This
section would also make certain technical changes to subdivision 11 of
section 230 of the public health law.

Section three would amend subdivision 2 of section 474-a of the Judici-
ary law to provide for a new schedule of maximum contingent fees for
medical, dental or podiatric malpractice actions. The new schedule would
be adjusted for cases decided prior to December thirty-first, two thou-
sand eighteen, cases decided prior to January first, two thousand nine-
teen through December thirty-first, two thousand nineteen, and cases
decided from January first, two thousand twenty through December thirty
first, two thousand twenty.

Section three would also repeal sections 3, 4 and 5 of section 474-a of
the Judiciary law.

 
JUSTIFICATION:

This bill eliminates an exception that allowed parties to avoid disclos-
ing the names of medical, dental or podiatric experts, when responding
to a request in an action for medical, dental or podiatric malpractice.

The granting of immunity to certain organizations that establish physi-
cian committees, and to individuals providing services to such committee
or organization, will help ensure these entities and individuals can
operate without concerns that their actions might subject them to poten-
tial lawsuits and personal liability.


This bill provides for a new schedule of maximum contingency fees in
medical, dental or podiatric malpractice actions decided before December
31, 2021. The new schedule would increase the maximum contingency fees
that could be charged in such actions, relative to existing law. It has
been a significant amount of time since the current schedule of maximum
fees was enacted in to law, and while inflation has reduced the value of
the dollar over that time period, the statute has not been amended.

 
LEGISLATIVE HISTORY:

New Bill

 
FISCAL IMPLICATIONS:

None to the State.

 
EFFECTIVE DATE:
§ 5. This act shall take effect immediately; provided however, that
section one of this act shall take effect on the thirtieth day after it
shall have become a law and shall apply to all actions involving
personal injury, medical, dental or podiatric malpractice, or wrongful
death filed on and after such date and to all such actions pending on
such effective date except as to conduct prohibited by section one of
this act which occurred prior to such effective date provided, that the
amendments to paragraph (g) of subdivision 11 of section 230 of the
public health law, made by section two of this act, shall not affect the
repeal of such paragraph, and shall be deemed repealed therewith; and
provided, further, that the amendments to subparagraphs (v) and (vi) of
paragraph (g) of subdivision 11 of section 230 of the public health law,
made by section two of this act, shall not affect the repeal of such
subparagraphs, and shall be deemed repealed therewith; provided further,
however, that section four of this act shall take effect January 1,
2021.

2017-S6804 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6804
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               June 18, 2017
                                ___________
 
 Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
   when printed to be committed to the Committee on Rules
 
 AN ACT to amend the civil practice law and rules,  in  relation  to  the
   scope  of  disclosure  of  certain experts; to amend the public health
   law, in relation to granting immunity from liability to  organizations
   which  establish  physician committees; to amend the judiciary law, in
   relation to the  maximum  allowable  amount  of  contingency  fees  in
   medical,  dental  and  podiatric  malpractice  actions;  and to repeal
   certain provisions of such law relating thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subparagraph  (i)  of  paragraph  1 of subdivision (d) of
 section 3101 of the civil practice law and rules, as amended by  chapter
 184 of the laws of 1988, is amended to read as follows:
   (i) Upon request, each party shall identify each person whom the party
 expects  to  call  as  an  expert witness at trial and shall disclose in
 reasonable detail the subject matter on which each expert is expected to
 testify, the substance of the facts and opinions on which each expert is
 expected to testify, the qualifications of each  expert  witness  and  a
 summary of the grounds for each expert's opinion. However, where a party
 for  good  cause  shown retains an expert an insufficient period of time
 before the commencement of trial to give appropriate notice thereof, the
 party shall not thereupon be precluded  from  introducing  the  expert's
 testimony  at  the  trial  solely  on grounds of noncompliance with this
 paragraph. In that instance, upon motion of any party, made before or at
 trial, or on its own initiative, the court may make whatever  order  may
 be  just.  In  an action for medical, dental or podiatric malpractice, a
 party, in responding to a request,  [may  omit  the  names  of  medical,
 dental  or  podiatric  experts  but]  shall  be required to disclose all
 [other] information concerning such experts otherwise required  by  this
 paragraph.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD02829-06-7

 S. 6804                             2
 
   §  2.  Paragraph  (g)  of  subdivision 11 of section 230 of the public
 health law, as added by chapter 426 of the laws of  1983,  subparagraphs
 (ii)  and  (iii) as amended by chapter 606 of the laws of 1991, subpara-
 graphs (v) and (vi) as added by chapter 582 of  the  laws  of  1984,  is
 amended to read as follows:
   (g) (I) Any physician committee of the Medical Society of the State of
 New  York,  the  New  York State Osteopathic Society or a county medical
 society referred to in subparagraph (ii) of paragraph (c) of this subdi-
 vision shall develop procedures in consultation with, and  approved  by,
 the commissioner [of the department of health], including but not limit-
 ed to the following:
   [(i)]  (A)  The  committee  shall  disclose at least once a month such
 information as the  director  of  the  office  of  professional  medical
 conduct  may  deem  appropriate  regarding reports received, contacts or
 investigations made and the disposition of each report, provided however
 that the committee shall not disclose any personally identifiable infor-
 mation except as provided in [subparagraph (ii)] CLAUSE (B) or [subpara-
 graph (iii)] (C) of this [paragraph] SUBPARAGRAPH.
   [(ii)] (B) The committee shall immediately report to the director  the
 name,  all information obtained and the results of any contact or inves-
 tigation regarding any physician who  is  believed  to  be  an  imminent
 danger to the public.
   [(iii)]  (C)  The  committee  shall report to the director in a timely
 fashion all information obtained regarding any physician who refuses  to
 cooperate  with  the committee, refuses to submit to treatment, or whose
 impairment is not substantially alleviated through treatment.
   [(iv)] (D) The committee shall inform each physician  who  is  partic-
 ipating  in  a program of the procedures followed in the program, of the
 rights and responsibilities of the physician in the program and  of  the
 possible results of noncompliance with the program.
   [(v)] (II) No member of any such committee; NOR THE MEDICAL SOCIETY OF
 THE STATE OF NEW YORK, THE NEW YORK STATE OSTEOPATHIC SOCIETY OR A COUN-
 TY  MEDICAL SOCIETY REFERRED TO IN SUBPARAGRAPH (II) OF PARAGRAPH (C) OF
 THIS SUBDIVISION THAT ESTABLISHES A COMMITTEE; NOR ANY  AGENT,  SERVANT,
 REPRESENTATIVE  OR  EMPLOYEE THAT PROVIDES SERVICE TO ANY SUCH COMMITTEE
 OR SOCIETY, shall be liable for damages to any  person  for  any  action
 taken by such COMMITTEE, SOCIETY, member, AGENT, SERVANT, REPRESENTATIVE
 OR EMPLOYEE provided that such action was taken without malice and with-
 in  the  scope of such [member's] INDIVIDUAL'S function [as a member of]
 TO such committee.
   [(vi)] (III) The committee, in conjunction with the  director  of  the
 office  of  professional  medical  conduct,  shall  develop  appropriate
 consent forms and disclosure proceedings as may be necessary  under  any
 federal statute, rule or regulation in order to permit the disclosure of
 the  information  as  may be required under [subparagraphs (ii)] CLAUSES
 (B) and [(iii)] (C) OF SUBPARAGRAPH (I) of this paragraph.
   (IV) Except as [herein] provided IN THIS PARAGRAPH and notwithstanding
 any other provision of law, neither the proceedings nor the  records  of
 any  such physician committee shall be subject to disclosure under arti-
 cle thirty-one of the civil practice law and rules nor shall any  member
 of  any  such committee nor any person in attendance at any such meeting
 be required to testify as to what transpired thereat.
   § 3. Subdivision 2 of section 474-a of the judiciary law,  as  amended
 by chapter 485 of the laws of 1986, is amended to read as follows:
   2. Notwithstanding any inconsistent judicial rule, a contingent fee in
 a  medical,  dental or podiatric malpractice action shall not exceed the

 S. 6804                             3
 
 amount of compensation provided for in the following schedule FOR  CASES
 DECIDED PRIOR TO DECEMBER THIRTY-FIRST, TWO THOUSAND EIGHTEEN:
 
      30 percent of the first [$250,000] $500,000 of the sum
      recovered;
      [25 percent of the next $250,000 of the sum recovered;
      20] 25 percent of the next $500,000 of the sum recovered;
      [15] 20 percent of the next $250,000 of the sum
      recovered;
      [10] 15 percent of any amount over $1,250,000 of the sum
      recovered;
 
 AND  NOTWITHSTANDING ANY INCONSISTENT JUDICIAL RULE, A CONTINGENT FEE IN
 A MEDICAL, DENTAL OR PODIATRIC MALPRACTICE ACTION SHALL NOT  EXCEED  THE
 AMOUNT  OF COMPENSATION PROVIDED FOR IN THE FOLLOWING SCHEDULE FOR CASES
 DECIDED FROM JANUARY FIRST, TWO THOUSAND NINETEEN THROUGH DECEMBER THIR-
 TY-FIRST, TWO THOUSAND NINETEEN:
 
      30 PERCENT OF THE FIRST $1,000,000 OF THE SUM RECOVERED;
      25 PERCENT OF THE NEXT $250,000 OF THE SUM RECOVERED;
      20 PERCENT OF ANY AMOUNT OVER $1,250,000 OF THE SUM RECOVERED;
 
 AND NOTWITHSTANDING ANY INCONSISTENT JUDICIAL RULE, A CONTINGENT FEE  IN
 A  MEDICAL,  DENTAL OR PODIATRIC MALPRACTICE ACTION SHALL NOT EXCEED THE
 AMOUNT OF COMPENSATION PROVIDED FOR IN THE FOLLOWING SCHEDULE FOR  CASES
 DECIDED  FROM  JANUARY FIRST, TWO THOUSAND TWENTY THROUGH DECEMBER THIR-
 TY-FIRST, TWO THOUSAND TWENTY:
 
      30 PERCENT OF THE FIRST $1,250,000 OF THE SUM RECOVERED;
      25 PERCENT OF ANY AMOUNT OVER $1,250,000 OF THE SUM RECOVERED;
 
 AND AFTER DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY,  CONTINGENCY  FEES
 IN  MEDICAL,  DENTAL AND PODIATRIC MALPRACTICE ACTIONS SHALL BE GOVERNED
 BY THE RULES APPLICABLE TO ALL OTHER PERSONAL INJURY AND WRONGFUL  DEATH
 ACTIONS.
   § 4. Subdivisions 3, 4 and 5 of section 474-a of the judiciary law are
 REPEALED.
   §  5.  This  act shall take effect immediately; provided however, that
 section one of this act shall take effect on the thirtieth day after  it
 shall  have  become  a  law  and  shall  apply  to all actions involving
 personal injury, medical, dental or podiatric malpractice,  or  wrongful
 death  filed  on  and after such date and to all such actions pending on
 such effective date except as to conduct prohibited by  section  one  of
 this  act which occurred prior to such effective date provided, that the
 amendments to paragraph (g) of subdivision 11  of  section  230  of  the
 public health law, made by section two of this act, shall not affect the
 repeal  of  such  paragraph, and shall be deemed repealed therewith; and
 provided, further, that the amendments to subparagraphs (v) and (vi)  of
 paragraph (g) of subdivision 11 of section 230 of the public health law,
 made  by  section  two  of this act, shall not affect the repeal of such
 subparagraphs, and shall be deemed repealed therewith; provided further,
 however, that section four of this act  shall  take  effect  January  1,
 2021.

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Senate Bill S6804

Sponsored By

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Actions

2017-S6804 (ACTIVE) - Details

2017-S6804 (ACTIVE) - Summary

2017-S6804 (ACTIVE) - Sponsor Memo

2017-S6804 (ACTIVE) - Bill Text download pdf

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Sponsored By

John A. DeFrancisco

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Actions

2017-S6804 (ACTIVE) - Details

2017-S6804 (ACTIVE) - Summary

2017-S6804 (ACTIVE) - Sponsor Memo

2017-S6804 (ACTIVE) - Bill Text download pdf

Comments