S T A T E O F N E W Y O R K
________________________________________________________________________
1024
2023-2024 Regular Sessions
I N S E N A T E
January 9, 2023
___________
Introduced by Sen. COONEY -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary
AN ACT to amend the civil practice law and rules, in relation to
"economic loss" and damages for health care costs in actions for
medical, dental or podiatric malpractice
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 1600 of the civil practice law and rules, as added
by chapter 682 of the laws of 1986, is amended to read as follows:
§ 1600. Definitions. 1. As used in this article the term "non-economic
loss" includes but is not limited to pain and suffering, mental anguish,
loss of consortium or other damages for non-economic loss.
2. AS USED IN THIS ARTICLE, THE TERM "ECONOMIC LOSS" INCLUDES BUT IS
NOT LIMITED TO THE COST OF MEDICAL CARE, DENTAL CARE, CUSTODIAL CARE,
REHABILITATION SERVICES, LOSS OF EARNINGS, OR OTHER SIMILAR DAMAGES FOR
ECONOMIC LOSS.
§ 2. Subdivision 1 of section 1601 of the civil practice law and
rules, as amended by chapter 635 of the laws of 1996, is amended to read
as follows:
1. Notwithstanding any other provision of law, when a verdict or deci-
sion in an action or claim for personal injury is determined in favor of
a claimant in an action involving two or more tortfeasors jointly liable
or in a claim against the state and the liability of a defendant is
found to be fifty percent or less of the total liability assigned to all
persons liable, the liability of such defendant to the claimant for
non-economic loss AND ECONOMIC LOSS shall not exceed that defendant's
equitable share determined in accordance with the relative culpability
of each person causing or contributing to the total liability for non-e-
conomic loss AND ECONOMIC LOSS; provided, however that the culpable
conduct of any person not a party to the action shall not be considered
in determining any equitable share herein if the claimant proves that
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02703-01-3
S. 1024 2
with due diligence he or she was unable to obtain jurisdiction over such
person in said action (or in a claim against the state, in a court of
this state); and further provided that the culpable conduct of any
person shall not be considered in determining any equitable share herein
to the extent that action against such person is barred because the
claimant has not sustained a "grave injury" as defined in section eleven
of the workers' compensation law.
§ 3. 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] AFFIDAVIT of merit in medical, dental and
podiatric malpractice actions. (a) In any action for medical, dental or
podiatric malpractice, the complaint shall be accompanied by [a certif-
icate, executed by the attorney for the plaintiff, declaring] AN AFFIDA-
VIT OF MERIT EXECUTED BY A HEALTHCARE PROFESSIONAL WHO THE PLAINTIFF'S
ATTORNEY OR, THE PLAINTIFF IF NOT REPRESENTED BY AN ATTORNEY, REASONABLY
BELIEVES IS KNOWLEDGEABLE IN THE RELEVANT ISSUES INVOLVED IN THE PARTIC-
ULAR ACTION TO BE AN EXPERT PHYSICIAN IN A MEDICAL MALPRACTICE ACTION,
AN EXPERT DENTIST IN A DENTAL MALPRACTICE ACTION OR AN EXPERT PODIATRIST
IN A PODIATRIC MALPRACTICE ACTION, STATING 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 who is licensed to practice in this state
or any other state and who the attorney reasonably believes is know-
ledgeable in the relevant issues involved in the particular action, and
that the attorney has concluded on the basis of such review and consul-
tation that there is a reasonable basis for the commencement of such
action; or
(2) the attorney was unable to obtain the consultation required by
paragraph one of this subdivision because a limitation of time, estab-
lished 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 required by
paragraph one of this subdivision because the attorney had made three
separate good faith attempts with three separate physicians, dentists or
podiatrists, in accordance with the provisions of paragraph one of this
subdivision to obtain such consultation and none of those contacted
would agree to such a consultation] THE PHYSICIAN IN A MEDICAL MALPRAC-
TICE ACTION, OR THE DENTIST IN A DENTAL MALPRACTICE ACTION, OR THE
PODIATRIST IN A PODIATRIC MALPRACTICE ACTION HAS REVIEWED THE COMPLAINT
IN THE MALPRACTICE ACTION AND ALL MEDICAL RECORDS SUPPLIED BY THE
PLAINTIFF'S ATTORNEY, OR PLAINTIFF IF NOT REPRESENTED BY AN ATTORNEY,
AND STATES EACH OF THE FOLLOWING WITH INDIVIDUAL PARTICULARIZATION TO
THE SPECIFICALLY NAMED DEFENDANT OR DEFENDANTS:
(1) THE APPLICABLE STANDARD OF PRACTICE OR CARE CONCERNING THE ALLEGA-
TIONS CONTAINED IN THE COMPLAINT.
(2) THE APPLICABLE STANDARD OF PRACTICE OR CARE BREACHED.
(3) THE ACTIONS THAT SHOULD HAVE BEEN TAKEN OR OMITTED IN ORDER TO
HAVE COMPLIED WITH THE APPLICABLE STANDARD OF CARE.
(4) THE MANNER IN WHICH THE BREACH OF THE STANDARD OF PRACTICE OR CARE
WAS THE PROXIMATE CAUSE OF THE PLAINTIFF'S INJURY.
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(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]
WHERE AN AFFIDAVIT OF MERIT IS REQUIRED PURSUANT TO THIS SECTION, AN
INDIVIDUAL AFFIDAVIT SHALL BE FILED FOR EACH NAMED DEFENDANT WHO IS A
PHYSICIAN, DENTIST OR PODIATRIST NAMED IN THE COMPLAINT.
(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] AN AFFIDAVIT, executed
by the attorney, declaring that the attorney is solely relying on such
doctrine and, for that reason, is not filing [a certificate] THE AFFIDA-
VIT OF MERIT 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] THE PLAINTIFF MAY, IN LIEU OF SERVING
THE AFFIDAVIT OF MERIT REQUIRED BY THIS SECTION, PROVIDE THE DEFENDANT
OR DEFENDANTS WITH THE INFORMATION REQUIRED BY PARAGRAPH ONE OF SUBDIVI-
SION (D) OF SECTION THIRTY-ONE HUNDRED ONE OF THIS CHAPTER WITHIN THE
PERIOD OF TIME PRESCRIBED BY THIS SECTION, PROVIDED THAT THE DISCLOSURE
BE EXECUTED BY THE PHYSICIAN IN A MEDICAL MALPRACTICE ACTION, OR THE
DENTIST IN A DENTAL MALPRACTICE ACTION, OR THE PODIATRIST IN A PODIATRIC
MALPRACTICE ACTION WHO HAS REVIEWED THE COMPLAINT IN THE MALPRACTICE
ACTION AND ALL MEDICAL RECORDS SUPPLIED BY THE PLAINTIFF'S ATTORNEY.
(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 with whom the
attorney consulted shall not be required to disclose the identity of the
physician, dentist or podiatrist consulted and the contents of such
consultation; 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 with the physician, dentist
or podiatrist, the court may, upon the request of a defendant made prior
to compliance by the plaintiff with the provisions of section thirty-one
hundred of this chapter, require the attorney to divulge to the court
the names of physicians, dentists or podiatrists refusing such consulta-
tion] THE PLAINTIFF'S ATTORNEY OR, THE PLAINTIFF IF NOT REPRESENTED BY
AN ATTORNEY, MAY WITH GOOD CAUSE SHOWN, FILE A MOTION TO EXTEND THE
PERIOD OF TIME TO FILE THE REQUIRED AFFIDAVIT OF MERIT. THE MOTION SHALL
BE FILED TOGETHER WITH THE COMPLAINT. THE COURT MAY GRANT REASONABLE
TIME TO FILE THE AFFIDAVIT OF MERIT, NOT TO EXCEED NINETY DAYS, EXCEPT
THE TIME MAY BE EXTENDED BEYOND NINETY DAYS IF THE COURT DETERMINES THAT
A DEFENDANT OR NON-PARTY HAS FAILED TO COOPERATE WITH ACCESS TO MEDICAL
OR DENTAL RECORDS NECESSARY FOR THE AFFIDAVIT OF MERIT OR THAT OTHER
CIRCUMSTANCES WARRANT EXTENSION OF TIME.
(f) [The provisions of this section shall not be applicable to a
plaintiff 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] ANY COMPLAINT ALLEGING MEDICAL, DENTAL, OR PODIATRIC MALPRAC-
TICE THAT IS NOT ACCOMPANIED BY AN AFFIDAVIT OF MERIT AS REQUIRED BY
THIS SECTION SHALL BE DEEMED DEFECTIVE AS A MATTER OF LAW AND, UPON
S. 1024 4
MOTION BY THE DEFENDANT, BE DISMISSED ON THE MERITS BY THE COURT. SUCH
DISMISSAL SHALL BE WITH PREJUDICE.
§ 4. Paragraphs 3 and 4 of subdivision (a) of section 3101 of the
civil practice law and rules, as amended by chapter 98 of the laws of
1993, are amended and a new paragraph 5 is added to read as follows:
(3) a person about to depart from the state, or without the state, or
residing at a greater distance from the place of trial than one hundred
miles, or so sick or infirm as to afford reasonable grounds of belief
that he or she will not be able to attend the trial, or a person author-
ized to practice medicine, dentistry or podiatry who has provided
medical, dental or podiatric care or diagnosis to the party demanding
disclosure, or who has been retained by such party as an expert witness;
[and]
(4) any other person, upon notice stating the circumstances or reasons
such disclosure is sought or required[.]; AND
(5) NOTWITHSTANDING ANY PROVISION OF SUBPARAGRAPH (I) OF PARAGRAPH ONE
OF SUBDIVISION (D) OF THIS SECTION TO THE CONTRARY, IN AN ACTION FOR
MEDICAL, DENTAL OR PODIATRIC MALPRACTICE, EACH PARTY SHALL SERVE THE
DISCLOSURE DESCRIBED IN SUCH SUBPARAGRAPH WITHIN SIXTY DAYS PRECEDING
THE FILING REQUIRED BY RULE THIRTY-FOUR HUNDRED TWO OF THIS CHAPTER.
FURTHER, AT ANY TIME AFTER JOINDER OF ISSUE, ANY PARTY MAY, BY WRITTEN
NOTICE MADE TO AND SERVED UPON ALL OTHER PARTIES AND FILED WITH THE
COURT; CONDUCT AN EXAMINATION UPON ORAL DEPOSITION OF ANY PERSON WHO HAS
BEEN DISCLOSED AS AN EXPERT WITNESS BY ANY OTHER PARTY. 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 ARTICLE AND,
UNLESS OTHERWISE ORDERED BY THE COURT, ALL EXPERT WITNESS DEPOSITIONS
SHALL BE TAKEN BEFORE THE FILING REQUIRED BY RULE THIRTY-FOUR HUNDRED
TWO OF THIS CHAPTER. IF ANY PARTY, HAVING RECEIVED SUCH NOTICE, FAILS TO
MAKE THAT PARTY'S EXPERT WITNESS AVAILABLE FOR ORAL DEPOSITION, THAT
PARTY SHALL BE PRECLUDED FROM OFFERING EXPERT TESTIMONY AT THE TRIAL OF
THE ACTION. FOR PURPOSES OF RULE THIRTY-ONE HUNDRED TEN AND RULE THIR-
TY-ONE HUNDRED SEVENTEEN OF THIS ARTICLE, AN EXPERT WITNESS, AS PROVIDED
IN THIS SECTION, SHALL BE CONSIDERED A PARTY. EACH PARTY SEEKING THE
DEPOSITION OF AN EXPERT WITNESS SHALL PAY THE EXPERT A REASONABLE FEE
FOR THE TIME SPENT AT THE DEPOSITION.
§ 5. Paragraph 1 of subdivision (d) of section 3101 of the civil prac-
tice law and rules, as amended by chapter 184 of the laws of 1988,
subparagraph (ii) as amended by chapter 165 of the laws of 1991, is
amended to read as follows:
1. Experts. (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 intro-
ducing the expert's testimony at the trial solely on grounds of noncom-
pliance 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 podia-
tric malpractice, a party, in responding to a request, may omit the
names of medical, dental or podiatric experts but shall be required to
S. 1024 5
disclose all other information 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. 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.
(iii)] (II) Further disclosure concerning the expected testimony of
any expert, EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPH FIVE OF SUBDIVI-
SION (A) OF THIS SECTION, may be obtained only by court order upon a
showing of special circumstances and subject to restrictions as to scope
and provisions concerning fees and expenses as the court may deem appro-
priate. However, a party, without court order, may take the testimony of
a person authorized to practice medicine, dentistry or podiatry who is
the party's treating or retained expert, as described in paragraph three
of subdivision (a) of this section, in which event any other party shall
be entitled to the full disclosure authorized by this article with
respect to that expert without court order.
§ 6. The civil practice law and rules is amended by adding a new
section 4546-a to read as follows:
§ 4546-A. DAMAGES FOR HEALTH CARE COSTS IN ACTIONS FOR MEDICAL, DENTAL
OR PODIATRIC MALPRACTICE. 1. DEFINITIONS. "HEALTH CARE COSTS" SHALL MEAN
THE COSTS FOR MEDICAL CARE, DENTAL CARE, CUSTODIAL CARE, OR REHABILI-
TATION SERVICES.
2. IN ANY ACTION FOR MEDICAL, DENTAL, OR PODIATRIC MALPRACTICE, THE
AMOUNT OF HEALTH CARE COSTS SHALL BE CALCULATED: (A) WITH RESPECT TO
SERVICES PROVIDED IN PRIVATE PHYSICIAN PRACTICES ON THE BASIS OF ONE
HUNDRED PERCENT OF THE USUAL AND CUSTOMARY RATES, AS DEFINED BY THE
COMMISSIONER OF HEALTH IN REGULATION; OR (B) WITH RESPECT TO ALL OTHER
SERVICES, ON THE BASIS OF MEDICAID RATES OF REIMBURSEMENT OR, WHERE NO
SUCH RATES ARE AVAILABLE, AS DEFINED BY THE COMMISSIONER OF HEALTH IN
REGULATION.
§ 7. This act shall take effect on the one hundred eightieth day after
it shall have become a law and shall apply to all actions and
proceedings commenced on or after such date; provided, however, that
sections four and five of this act shall take effect on the ninetieth
day after it shall have become a law.
