The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5725
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 24, 2021
                                ___________
 
 Introduced by M. of A. HAWLEY, McDONOUGH, SALKA -- Multi-Sponsored by --
   M.  of A.   J. M. GIGLIO -- read once and referred to the Committee on
   Codes
 
 AN ACT to amend the civil practice law and rules and the judiciary  law,
   in  relation  to dental, medical and podiatric malpractice actions and
   to establishing a limitation on noneconomic damages in personal injury
   actions
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section 3012-a of the civil  practice  law  and rules, as
 amended  by  chapter  507  of  the  laws  of 1987, is amended to read as
 follows:
   § 3012-a. Certificate of merit in medical, dental and  podiatric malp-
 ractice actions AND ACTIONS AGAINST ALL OTHER PROFESSIONALS. (a) In  any
 action    for medical, dental or podiatric malpractice, OR IN ANY ACTION
 FOR DAMAGES, CONTRIBUTION OR INDEMNITY ARISING OUT OF ALLEGED NEGLIGENCE
 OF A PROFESSIONAL SUBJECT TO THE PROVISIONS OF TITLE VIII OF THE  EDUCA-
 TION  LAW, the complaint shall be accompanied by a certificate, executed
 by the  attorney  for  the plaintiff, OR OTHER PARTY ASSERTING THE CAUSE
 OF ACTION, declaring that:
   (1) the attorney has reviewed the facts of the case and has  consulted
 with at least one physician in medical malpractice actions, at least one
 dentist  in  dental malpractice actions [or], at least one podiatrist in
 podiatric malpractice actions, OR AT LEAST ONE PROFESSIONAL IN THE  SAME
 PROFESSION  AS  THE  PERSON  OR PERSONS DEFENDANT IN THE SUBJECT SUIT IN
 OTHER PROFESSIONAL MALPRACTICE OR NEGLIGENCE ACTIONS AND who is licensed
 to practice in this state or  any  other  state  and  who  the  attorney
 reasonably believes is knowledgeable in the  relevant issues involved in
 the  particular  action, AND WHO HAS SIGNED AN AFFIDAVIT CONCLUDING THAT
 THERE IS A REASONABLE BASIS FOR THE  COMMENCEMENT  OF  AN  ACTION,  SUCH
 AFFIDAVIT  SHALL ACCOMPANY THE CERTIFICATE REQUIRED BY THIS SECTION, and
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD04874-01-1

 A. 5725                             2
 
 that the attorney has concluded on  the  basis  of  such  review  [and],
 consultation  AND  AFFIDAVIT  that  there is a reasonable basis for  the
 commencement of such action; or
   (2)  the  attorney  was  unable to obtain the consultation AND AFFIDA-
 VIT required by paragraph one of this subdivision because  a  limitation
 of  time,  established  by  article  two  of this chapter, would bar the
 action and that the certificate  required  by  paragraph  one   of  this
 subdivision  could  not reasonably be obtained before such time expired.
 If  a   certificate   is executed   pursuant to  this  subdivision,  the
 certificate  required  by this section  shall  be  filed  within  ninety
 days  after  service  of  the complaint; or
   (3) the attorney was unable to obtain  the  consultation AND AFFIDAVIT
 required by paragraph one of this subdivision because the  attorney  had
 made  three separate good faith attempts with three separate physicians,
 dentists [or], podiatrists OR SUBJECT PROFESSIONALS, in accordance  with
 the  provisions  of  paragraph  one  of  this subdivision to obtain such
 consultation AND AFFIDAVIT and none of those contacted  would  agree  to
 such a consultation AND AFFIDAVIT.
   (b) Where a certificate is required pursuant to this section, a single
 certificate  shall  be  filed  for  each  action,  even if more than one
 defendant has been named in the complaint or is subsequently named.
   (c)  Where the attorney intends to rely solely on the doctrine of "res
 ipsa  loquitur", this section shall be inapplicable.  In such cases, the
 complaint shall be accompanied by a certificate, executed by the  attor-
 ney, declaring that the attorney is solely relying on such doctrine and,
 for that reason, is not filing a certificate required by this section.
   (d)  If  a request by the plaintiff for the records of the plaintiff's
 medical or dental treatment by the defendants has  been  made  and  such
 records  have  not been produced, the plaintiff shall not be required to
 serve the certificate required by this section until ninety  days  after
 such records have been produced.
   (e) For purposes of this section, and subject  to  the  provisions  of
 section  thirty-one hundred one of this chapter, an attorney who submits
 a certificate as required by paragraph one or two of subdivision (a)  of
 this  section  and  the  physician,  dentist [or], podiatrist OR SUBJECT
 PROFESSIONALS with whom the attorney consulted shall not be required  to
 disclose  the  identity  of  the  physician, dentist [or], podiatrist OR
 SUBJECT PROFESSIONALS consulted and the contents  of  such  consultation
 AND  AFFIDAVIT;  provided, however, that when the attorney makes a claim
 under paragraph three of subdivision (a) of this  section  that  he  was
 unable to obtain the required consultation AND AFFIDAVIT with the physi-
 cian,  dentist [or], podiatrist OR SUBJECT PROFESSIONALS, the court may,
 upon the request of a defendant made prior to compliance by  the  plain-
 tiff with the provisions of section thirty-one hundred ONE of this chap-
 ter,  require  the  attorney to divulge to the court the names of physi-
 cians, dentists [or], podiatrists OR SUBJECT PROFESSIONALS refusing such
 consultation AND AFFIDAVIT.
   (f) The provisions of this section shall not be applicable to a plain-
 tiff who is not represented by an attorney.
   (g) The plaintiff may, in lieu of serving the certificate required  by
 this  section,  provide the defendant or defendants with the information
 required  by paragraph one  of  subdivision  (d)  of  section thirty-one
 hundred one of this chapter within the period of time prescribed by this
 section.
   (H) THE SUBJECT PROFESSIONAL OR PROFESSIONALS CONSULTED MAY NOT  BE  A
 PARTY TO THE LITIGATION.

 A. 5725                             3
 
   (I)  FOR   PURPOSES   OF   THIS  SECTION,  A COMPLAINT SHALL INCLUDE A
 COMPLAINT, THIRD PARTY COMPLAINT, AN ANSWER CONTAINING A COUNTERCLAIM OR
 A CROSS CLAIM.
   §  2.  Subparagraphs (i) and (ii) of paragraph 1 of subdivision (d) of
 section 3101 of the civil practice law and rules,  subparagraph  (i)  as
 amended  by  chapter  184  of  the laws of 1988 and subparagraph (ii) as
 amended by chapter 165 of the laws of  1991,  are  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  infor-
 mation concerning such experts otherwise required by this paragraph.]
   (ii)  In  an  action for medical, dental or podiatric malpractice, any
 party may, by written offer made to and served upon  all  other  parties
 and  filed  with the court, [offer to disclose the name of, and to] make
 available for examination upon oral deposition,  any  person  the  party
 making  the  offer expects to call as an expert witness at trial. Within
 twenty days of service of the offer, a party shall accept or reject  the
 offer  by  serving  a  written  reply upon all parties and filing a copy
 thereof with the court.  Failure to serve a reply within twenty days  of
 service  of  the  offer shall be deemed a rejection of the offer. If all
 parties accept the offer, each party shall be required to produce his or
 her expert witness for examination upon oral deposition upon receipt  of
 a  notice  to  take  oral  deposition in accordance with rule thirty-one
 hundred seven of this [chapter] ARTICLE.  If any party, having  made  or
 accepted the offer, fails to make that party's expert available for oral
 deposition, that party shall be precluded from offering expert testimony
 at the trial of the action.
   §  3.  Subdivisions  (b) and (c) of section 5031 of the civil practice
 law and rules, as added by chapter 86 of the laws of 2003,  are  amended
 to read as follows:
   (b)  Awards  for  all  past  damages,  all  damages for future loss of
 services, all damages for future loss  of  consortium,  all  damages  in
 wrongful  death  actions,  and  damages for future pain and suffering of
 [five hundred] FIFTY thousand dollars or less shall be paid  in  a  lump
 sum.  In  any case in which all damages are to be paid in lump sums, the
 judgment shall be entered on the total of the lump sums, without further
 regard to this section.
   (c) As to any award of damages for future pain and suffering in excess
 of [five hundred] FIFTY thousand dollars, the court shall determine  the
 greater  of  thirty-five percent of such damages or [five hundred] FIFTY
 thousand dollars and such amount shall  be  paid  in  a  lump  sum.  The
 remaining  amount of the award for damages for future pain and suffering
 shall be paid in a stream of payments over the period of time determined

 A. 5725                             4
 
 by the trier of fact or eight years, whichever is less.  The  stream  of
 payments  for  future pain and suffering shall be calculated by dividing
 the remaining amount of damages for future pain  and  suffering  by  the
 number  of years over which such payments shall be made to determine the
 first year's payment and the payment due in each succeeding  year  shall
 be  computed  by adding four percent to the previous year's payment. The
 court shall determine the present value of the  stream  of  payments  by
 applying a discount rate to the stream of payments.
   §  4.  Subdivisions  (b) and (e) of section 5041 of the civil practice
 law and rules, as added by chapter 682 of the laws of 1986, are  amended
 to read as follows:
   (b)  The  court shall enter judgment in lump sum for past damages, for
 future damages not in excess of [two hundred]  fifty  thousand  dollars,
 and  for  any  damages,  fees  or costs payable in lump sum or otherwise
 under subdivisions (c) and (d) of this section. For the purposes of this
 section, any lump sum payment of a portion of future  damages  shall  be
 deemed  to include the elements of future damages in the same proportion
 as such elements comprise of the  total  award  for  future  damages  as
 determined by the trier of fact.
   (e)  With  respect  to  awards  of  future  damages  in excess of [two
 hundred] fifty thousand dollars in an  action  to  recover  damages  for
 personal  injury,  injury to property or wrongful death, the court shall
 enter judgment as follows:
   After making any adjustment prescribed by subdivisions  (b),  (c)  and
 (d)  of this section, the court shall enter a judgment for the amount of
 the present value of an annuity  contract  that  will  provide  for  the
 payment  of the remaining amounts of future damages in periodic install-
 ments. The present value of such contract shall be determined in accord-
 ance  with  generally  accepted  actuarial  practices  by  applying  the
 discount  rate  in effect at the time of the award to the full amount of
 the remaining future damages, as calculated pursuant  to  this  subdivi-
 sion. The period of time over which such periodic payments shall be made
 and the period of time used to calculate the present value of the annui-
 ty contract shall be the period of years determined by the trier of fact
 in  arriving at the itemized verdict; provided, however, that the period
 of time over which such periodic payments shall be made and  the  period
 of  time used to calculate the present value for damages attributable to
 pain and suffering shall be ten years or the period of  time  determined
 by the trier of fact, whichever is less. The court, as part of its judg-
 ment,  shall  direct  that  the  defendants and their insurance carriers
 shall be required to offer and to guarantee the purchase and payment  of
 such  an  annuity contract.  Such annuity contract shall provide for the
 payment of the annual payments of such remaining future damages over the
 period of time determined  pursuant  to  this  subdivision.  The  annual
 payment for the first year shall be calculated by dividing the remaining
 amount of future damages by the number of years over which such payments
 shall  be  made  and  the  payment  due in each succeeding year shall be
 computed by adding four percent to  the  previous  year's  payment.  THE
 ADDITION OF FOUR PERCENT TO EACH OF THE PREVIOUS YEAR'S PAYMENT SHALL BE
 THE EXCLUSIVE MEASURE OF INTEREST, INFLATION, FOREGONE INVESTMENT OPPOR-
 TUNITY  AND  ANY  OTHER MEASURE OF DAMAGE. Where payment of a portion of
 the future damages terminates in accordance with the provisions of  this
 article,  the  four  percent added payment shall be based only upon that
 portion of the  damages  that  remains  subject  to  continued  payment.
 Unless  otherwise  agreed, the annual sum so arrived at shall be paid in
 equal monthly installments and in advance.

 A. 5725                             5
 
   § 5. The civil practice law and rules is amended by adding a new arti-
 cle 50-C to read as follows:
                               ARTICLE 50-C
                     LIMITATION ON NONECONOMIC DAMAGES
 SECTION 5051. DEFINITIONS.
         5052. DAMAGE AWARDS.
   § 5051. DEFINITIONS. AS USED IN THIS ARTICLE:
   1.  "NONECONOMIC DAMAGES" MEANS SUBJECTIVE, NONPECUNIARY DAMAGES ARIS-
 ING FROM PAIN, SUFFERING, INCONVENIENCE, PHYSICAL IMPAIRMENT OR  DISFIG-
 UREMENT, MENTAL ANGUISH, EMOTIONAL DISTRESS, LOSS OF SOCIETY AND COMPAN-
 IONSHIP, LOSS OF CONSORTIUM, INJURY TO REPUTATION, HUMILIATION AND 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,  COSTS  OF
 REPAIR  OR REPLACEMENT OF PROPERTY, COSTS OF OBTAINING SUBSTITUTE DOMES-
 TIC SERVICES, LOSS OF EMPLOYMENT, LOSS OF BUSINESS OR EMPLOYMENT  OPPOR-
 TUNITIES,  REHABILITATION  SERVICES,  CUSTODIAL CARE AND OTHER PECUNIARY
 DAMAGES.
   3. "PERSONAL INJURY ACTION" MEANS ANY  ACTION,  INCLUDING  BUT  IN  NO
 MANNER  LIMITED  TO  MEDICAL,  DENTAL AND PODIATRIC MALPRACTICE ACTIONS,
 WHETHER IN TORT, CONTRACT, OR OTHERWISE, IN WHICH  THE  PLAINTIFF  SEEKS
 DAMAGES FOR INJURY TO THE PERSON OR WRONGFUL DEATH.
   4. "COMPENSATION" MEANS MONETARY AWARDS.
   §  5052.  DAMAGE AWARDS. IN ANY PERSONAL INJURY ACTION, THE PREVAILING
 PLAINTIFF MAY BE AWARDED:
   1. COMPENSATION FOR ACTUAL ECONOMIC DAMAGES SUFFERED  BY  THE  INJURED
 PLAINTIFF; AND
   2. COMPENSATION FOR NONECONOMIC DAMAGES SUFFERED BY THE INJURED PLAIN-
 TIFF, NOT TO EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS.
   §  6. Section 474-a of the judiciary law, as amended by chapter 485 of
 the laws of 1986, is amended to read as follows:
   § 474-a. Contingent fees  for  attorneys  in  claims  or  actions  for
 medical,  dental or podiatric malpractice, OR IN ANY CLAIM OR ACTION FOR
 PROPERTY DAMAGE OR PERSONAL INJURY, INCLUDING DEATH.  1. For the purpose
 of this section, the term "contingent fee" shall mean any attorney's fee
 in any claim or action for medical, dental or podiatric malpractice,  OR
 IN ANY CLAIM OR ACTION FOR PROPERTY DAMAGE OR PERSONAL INJURY, INCLUDING
 DEATH,  whether determined by judgment or settlement, which is dependent
 in whole or in part upon the success of the prosecution by the  attorney
 of  such  claim or action, or which is to consist of a percentage of any
 recovery, or a sum equal to a percentage of any recovery, in such  claim
 or action.
   2. Notwithstanding any inconsistent judicial rule, a contingent fee in
 a  medical,  dental  or podiatric malpractice action, OR IN ANY CLAIM OR
 ACTION FOR PROPERTY DAMAGE OR PERSONAL INJURY,  INCLUDING  DEATH,  shall
 not  exceed  the  amount  of  compensation provided for in the following
 schedule:
   [30] 25 percent of the first $250,000 of the sum recovered;
   [25] 20 percent of the next $250,000 of the sum recovered;
   [20] 15 percent of the next $500,000 of the sum recovered;
   [15] 10 percent of the next $250,000 of the sum recovered;
   [10] 5 percent of any amount over $1,250,000 of the sum recovered.
   3. Such percentages shall be computed on the net sum  recovered  after
 deducting  from  the  amount  recovered  expenses  and disbursements for
 expert testimony and investigative or other services properly chargeable

 A. 5725                             6
 
 to the enforcement of the claim or prosecution of the action. In comput-
 ing the fee, the costs as taxed, including  interest  upon  a  judgment,
 shall be deemed part of the amount recovered. For the following or simi-
 lar  items  there   shall be no deduction in computing such percentages:
 liens, assignments or claims in favor of hospitals,  for  medical  care,
 dental  care,  podiatric care and treatment by doctors and nurses, or of
 self-insurers or insurance carriers.
   4. In the event that claimant's or plaintiff's  attorney  believes  in
 good  faith  that  the fee schedule set forth in subdivision two of this
 section, because   of extraordinary circumstances,  will  not  give  him
 adequate  compensation, application for greater compensation may be made
 upon affidavit with written notice and an opportunity to be heard to the
 claimant or plaintiff and other persons holding liens or assignments  on
 the recovery. Such application shall be made to the justice of the trial
 part to which the action had been sent for trial; or, if it had not been
 sent  to  a  part  for trial, then to the justice presiding at the trial
 term calendar part of the court in which the action had been instituted;
 or, if no action had been instituted, then to the justice  presiding  at
 the  trial term calendar part of the Supreme Court for the county in the
 judicial department in which the  attorney  has  an  office.  Upon  such
 application,  the  justice,  in his discretion, if extraordinary circum-
 stances are found to be present, and without regard to the claimant's or
 plaintiff's consent,  may  fix  as  reasonable  compensation  for  legal
 services  rendered an amount greater than that specified in the schedule
 set forth in subdivision two of this section,  provided,  however,  that
 such  greater  amount  shall  not  exceed  the fee fixed pursuant to the
 contractual arrangement, if any, between the claimant or  plaintiff  and
 the  attorney.  If  the application is granted, the justice shall make a
 written order accordingly, briefly stating the reasons for granting  the
 greater  compensation;  and  a copy of such order shall be served on all
 persons entitled to receive notice of the application.
   5. Any contingent fee in a claim or  action  for  medical,  dental  or
 podiatric  malpractice, OR IN ANY CLAIM OR ACTION FOR PROPERTY DAMAGE OR
 PERSONAL INJURY, INCLUDING DEATH, brought on behalf of an  infant  shall
 continue  to be subject to the provisions of section four hundred seven-
 ty-four of this [chapter] ARTICLE.
   § 7. This act shall take effect immediately, provided, however, that:
   (a) The amendments effected by the provisions of sections one and five
 of this act shall apply to subject actions commenced on and  after  such
 date; and
   (b)  The  amendments effected by the provisions of section six of this
 act shall apply to retainer agreements executed on or after such date.