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This entry was published on 2014-09-22
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SECTION 3012-A
Certificate of merit in medical, dental and podiatric malpractice actions
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 30
§ 3012-a. Certificate 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 certificate,
executed by the attorney for the plaintiff, 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 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 that the attorney has concluded on the basis of such review and
consultation 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,
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 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.

(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
attorney, 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 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
consultation.

(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.