STATE OF NEW YORK
        ________________________________________________________________________

                                         4149--A

                               2007-2008 Regular Sessions

                    IN SENATE

                                     March 28, 2007
                                       ___________

        Introduced  by  Sens.  VOLKER,  LEIBELL, MORAHAN, RATH, WRIGHT, YOUNG --
          read twice and ordered printed, and when printed to  be  committed  to
          the  Committee  on Codes -- reported favorably from said committee and
          committed to the Committee on Finance --  committee  discharged,  bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee

        AN ACT to amend the civil practice law and rules and the education  law,
          in relation to the use of expert medical testimony; to amend the civil
          practice law and rules, in relation to creating the health care courts
          pilot  program; and to repeal certain provisions of the civil practice
          law and rules relating thereto

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Subparagraph  (i)  of  paragraph  1 of subdivision (d) of
     2  section 3101 of the civil practice law and rules, as amended by  chapter
     3  184 of the laws of 1988, is amended to read as follows:
     4    (i) Upon request, each party shall identify each person whom the party
     5  expects  to  call  as  an  expert witness at trial and shall disclose in
     6  reasonable detail the subject matter on which each expert is expected to
     7  testify, the substance of the facts and opinions on which each expert is
     8  expected to testify, the qualifications of each  expert  witness  and  a
     9  summary of the grounds for each expert's opinion. However, where a party
    10  for  good  cause  shown retains an expert an insufficient period of time
    11  before the commencement of trial to give appropriate notice thereof, the
    12  party shall not thereupon be precluded  from  introducing  the  expert's
    13  testimony  at  the  trial  solely  on grounds of noncompliance with this
    14  paragraph. In that instance, upon motion of any party, made before or at
    15  trial, or on its own initiative, the court may make whatever  order  may
    16  be  just.  In an action for medical, dental or podiatric malpractice, [a
    17  party, in responding to a request, may omit the names of medical, dental
    18  or podiatric experts but shall be required to disclose all other  infor-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10498-02-7

        S. 4149--A                          2

     1  mation  concerning such experts otherwise required by this paragraph] no
     2  individual shall be qualified to testify as  an  expert  witness  unless
     3  such  individual  is  a health care professional who: (A) is licensed to
     4  practice  in at least one state in the same profession as the defendant;
     5  (B) is actively engaged in clinical practice or teaching and experienced
     6  in the care at issue; and (C) if the defendant is  board  certified  and
     7  the  standard of care at issue involves his or her specialty, the expert
     8  must be board certified in the same specialty.
     9    § 2. Subparagraph (ii) of paragraph 1 of subdivision  (d)  of  section
    10  3101  of the civil practice law and rules is REPEALED and a new subpara-
    11  graph (ii) is added to read as follows:
    12    (ii) Notwithstanding any other provision of this article or of article
    13  thirty-two of this chapter, in an action for medical, dental  or  podia-
    14  tric  malpractice,  at  the  times  and  in the sequence directed by the
    15  court, such times to be prior to the service and filing  of  a  note  of
    16  issue  unless  the  court  directs  otherwise and preserves the right of
    17  every party to depose a person whose disclosure occurs subsequent to the
    18  filing of a note of issue,  each  party  shall  disclose  to  the  other
    19  parties  the  identity of any person who may be used at trial to provide
    20  expert testimony in the case and each such disclosure shall be  accompa-
    21  nied  by a written report prepared and signed by such person. The report
    22  shall contain a complete statement of all opinions to be  expressed  and
    23  the basis and reasons therefor; the data or other information considered
    24  by  such  person  in  forming the opinions; any exhibits to be used as a
    25  summary of or support  for  the  opinions;  the  qualifications  of  the
    26  person,  including  a  list  of  all publications authored by the person
    27  during the preceding ten years; the compensation  to  be  paid  for  the
    28  person's  consideration  of data or other information and for his or her
    29  testimony; and a listing of any other cases  in  which  the  person  has
    30  testified as an expert at trial or by oral deposition within the preced-
    31  ing  four  years. Each party shall be required to produce each person so
    32  identified by such party as an expert witness, for examination upon oral
    33  deposition upon receipt of a notice to take oral deposition  in  accord-
    34  ance with rule thirty-one hundred seven of this article. Unless manifest
    35  injustice  would result, the court shall require that the party noticing
    36  an oral deposition of such an expert witness pay such witness a  reason-
    37  able  fee for time spent in attending such oral deposition. If any party
    38  fails to identify a person as an expert witness in accordance  with  the
    39  provisions  of  this  subparagraph,  or  if  any party fails to make any
    40  person identified by the party as an expert witness available  for  oral
    41  deposition  in accordance with the provisions of this subparagraph, such
    42  party shall be precluded from offering such expert's  testimony  at  the
    43  trial of the action.
    44    § 3. The civil practice law and rules is amended by adding a new arti-
    45  cle 44-A to read as follows:
    46                                ARTICLE 44-A
    47                      HEALTH CARE COURTS PILOT PROGRAM
    48  Section 4410. Creation.
    49          4411. Health care court judges; selection.
    50          4412. Judicial training.
    51          4413. Court appointed medical experts.
    52          4414. Procedure.
    53          4415. Appellate review.
    54          4416. Reports.
    55          4417. Disclaimer.

        S. 4149--A                          3

     1    §  4410. Creation. The office of court administration may select up to
     2  five counties, each within a separate judicial district in  this  state,
     3  to  establish specialized health care courts within the supreme court of
     4  such counties to govern claims for medical, dental or podiatric malprac-
     5  tice as set forth in this section. Once a supreme court within a partic-
     6  ular  county  has  established  a health care court as set forth in this
     7  section, such court shall  have  exclusive  jurisdiction  over  all  the
     8  claims  for  medical, dental or podiatric malpractice brought within the
     9  supreme court of such county.
    10    § 4411. Health care court judges; selection. Judges shall be  selected
    11  to  serve  in the health care court division from among those judges who
    12  are elected or appointed to the supreme court in a  county  selected  to
    13  participate  in  the health care courts pilot program.  For the purposes
    14  of this article, "judge" shall mean a judge of the health care division.
    15    § 4412. Judicial training. (a) Upon selection of a particular  supreme
    16  court judge to hear cases in the county's health care court and prior to
    17  hearing  such  cases,  each  judge  shall  complete  a judicial training
    18  program on the law and science of medicine that may  be  the  basis  for
    19  cases  falling  under  the  jurisdiction  of the health care court. Such
    20  program shall be administered by the office of court administration.
    21    (b) A committee shall be created to  develop  the  curriculum  of  the
    22  judicial  training  program.  A  task  force shall be coordinated by the
    23  office of court administration and shall  include  equal  representation
    24  from the Medical Society of the State of New York and the New York State
    25  Bar Association.
    26    (c)  The  curriculum to be created pursuant to subdivision (b) of this
    27  section shall include both in-classroom clinical training and an intern-
    28  ship. The in-classroom clinical training shall include  at  the  minimum
    29  the  following:  an  overview  of  the major body systems, pharmacology,
    30  common disease pathology, alternative medicine therapies, and the educa-
    31  tion and training required for various health professionals. The intern-
    32  ship shall provide judges an opportunity to follow a  practicing  physi-
    33  cian  and  other  health  care  professionals  in  different health care
    34  settings. The training program may also include a legal component  which
    35  shall  include a review of medical legal issues that may be the basis of
    36  cases falling under the jurisdiction of the health care court.
    37    § 4413. Court appointed medical experts. (a)  The  health  care  court
    38  shall  maintain  a list of qualified medical experts who may be utilized
    39  by the court to provide independent expert opinions to the  judge.  Such
    40  experts may provide opinions in writing to the judge or may be called by
    41  the  judge  to  testify before the court to clarify or interpret medical
    42  testimony or evidence, or for any other purpose the judge deems relevant
    43  to the proceedings.
    44    (b) A court appointed medical expert must meet the  following  minimum
    45  expert witness requirements:
    46    (1)  Holds  an active license in the same profession as the defendant.
    47  If the defendant is a licensed New York physician or  doctor  of  osteo-
    48  pathic  medicine,  the  expert witness must also be licensed in New York
    49  state as a doctor of medicine or osteopathic medicine;
    50    (2) Is trained and experienced in the same  discipline  or  school  of
    51  practice  as  the  defendant  and  can demonstrate by competent evidence
    52  that, as a result of training,  education, knowledge, and experience  in
    53  the  evaluation, diagnosis, and treatment of the disease or injury which
    54  is the subject matter of the lawsuit against the defendant, the individ-
    55  ual was substantially familiar with the applicable standards of care and

        S. 4149--A                          4

     1  practice as they relate to the act or omission which is the  subject  of
     2  the lawsuit on the date of the incident;
     3    (3)  If the defendant is certified by a board recognized by the Ameri-
     4  can Board of Medical Specialities or the  American  Osteopathic  Associ-
     5  ation,  the  expert  must  be certified in the same specialty by a board
     6  recognized by the American Board of Medical Specialities or the American
     7  Osteopathic Association and must have acknowledged expertise and  train-
     8  ing  directly  related to the particular health care or matter at issue;
     9  and
    10    (4) Within five years of the date of  the  alleged  occurrence  giving
    11  rise to the claim, was in active medical practice in the same discipline
    12  or  school of practice as the defendant or devoted a substantial portion
    13  of his time teaching at an accredited medical school, or in  university-
    14  based  research in relation to the medical care and type of treatment at
    15  issue.
    16    (c) A court appointed medical expert shall have no financial  ties  or
    17  familial  relationship  with any party to the lawsuit, any expert called
    18  to testify, or any attorney representing any party to the lawsuit.
    19    (d) The court appointed medical expert shall have no ex parte communi-
    20  cations with any party to the lawsuit, except as permitted by the court.
    21    (e) The plaintiff and defendant shall  equally  compensate  the  court
    22  appointed medical expert based on the prevailing fee for medical experts
    23  with similar qualifications.
    24    §  4414.  Procedure.  Claims adjudicated through the health care court
    25  shall adhere to this chapter except as otherwise provided  for  in  this
    26  article.
    27    §  4415.  Appellate  review.  Any  party to an action in a health care
    28  court may avail themselves of all appeal rights that otherwise would  be
    29  available under this chapter.
    30    §  4416.  Reports.  The office of court administration shall submit an
    31  annual report to the speaker of the assembly, the temporary president of
    32  the senate, the minority leader of the senate, the  minority  leader  of
    33  the  assembly  and the governor describing the functioning of the health
    34  care courts, including the number of disputes heard by  the  courts  and
    35  recommendations  for  improving  the  ability  of such courts to resolve
    36  claims involving medical, dental or podiatric malpractice.
    37    § 4417. Disclaimer. Nothing in this  article  shall  be  construed  to
    38  remove the jury as the ultimate finder of fact in an action for medical,
    39  dental or podiatric malpractice.
    40    §  4.  Section  6530  of  the education law is amended by adding a new
    41  subdivision 48 to read as follows:
    42    48. Providing expert medical testimony that  is  false  or  completely
    43  without  reasonable medical foundation in any action for injury or death
    44  arising out of the provision  of  or  failure  to  provide  health  care
    45  services. As used in this subdivision, testimony may be considered false
    46  or  completely  without  reasonable medical foundation if it was without
    47  foundation in accepted peer reviewed science-based medical research.
    48    § 5. This act shall take effect on the ninetieth day  after  it  shall
    49  have become a law.

 
BILL NUMBER: S4149A

SPONSOR: VOLKER¦¦¦¦¦¦¦¦¦¦¦¦¦¦

 
TITLE OF BILL:
An act to amend the civil practice law and rules and the education law,
in relation to the use of expert medical testimony; to amend the civil
practice law and rules, in relation to creating the health care courts
pilot program; and to repeal certain provisions of the civil practice
law and rules relating thereto


 
PURPOSE:
The purpose of the bill is to make revisions to the manner by which
medical liability claims are adjudicated.

 
SUMMARY OF PROVISIONS:
Section 1 of the bill would amend the Section 3101(d)(1)(i) of the Civil
Practice Law and Rules to remove the current provision in law that
prohibits the disclosure of the identity of a medical expert witness who
intends to testify in a medical liability action. Section 1 would also
require that an individual may not serve as expert witness in an action
for medical, dental or podiatric malpractice unless that individual has
appropriate qualifications, including board certification in the same
specialty as the defendant health care provider (if applicable) and
experience in treating the clinical area of expertise that is the
subject of the dispute.

Section 2 replaces clause (ii) of paragraph 1 of subdivision (d) of
Section 3101 of the CPLR to require that, in an action for medical,
dental or podiatric malpractice, the report shall contain a complete
statement of all opinions to be expressed, the basis and reasons there-
for; the data or other information considered by such person in forming
the opinions; any exhibits to be used as a summary of or support for the
opinions; the qualifications of the person, including a list of all
publications authored by the person during the preceding ten years; the
compensation to be paid for the person's consideration of data or other
information and for his or her testimony; and a listing of any other
cases in which the person has testified as an expert at trial or by oral
deposition within the preceding four years. Additionally, this bill
requires a party to produce such expert for an EBT, in accordance with
Rule 3107 of the CPLR. Unless manifest injustice would result, the court
shall require that the party noticing an oral deposition of such an
expert witness pay such witness a reasonable fee for time spent in
attending such oral deposition.  Violation of these provisions shall
preclude a party from offering such expert's testimony at the trial of
the action.

Section 3 of the bill would create a new Article 44-A of the Civil Prac-
tice Law and Rules to establish a pilot program to authorize the Office
of Court Administration to set up specialized "medical courts" to adju-
dicate medical liability actions within five counties across New York
State. Such courts would use specially trained judges and objective
independent medical expert witnesses, but would otherwise not interfere
with the statutory process for adjudicating an action for medical,
dental or podiatric malpractice.

Section 4 would amend section 6530 of the education law to create a new
element of professional misconduct for providing medical expert witness
testimony that is without reasonable medical foundation.
Section 5 would establish an effective date ninety days from when the
bill is signed into law.
 
JUSTIFICATION:
The cost of medical liability insurance has risen steadily over the last
several years. Most New York physicians, who were already paying enor-
mously high liability premiums to begin with, are now paying 30-47% more
for liability insurance than they were in 2003. For many physician
specialists practicing in the New York City metropolitan area, the cost
for such insurance over the last five years has almost doubled. A recent
report by the Center for Health Workforce Studies documented that many
regions all across the State have begun to see a considerable drop in
the number of critically needed surgical specialists, OB-GYNs and prima-
ry care physicians. A significant factor is the high cost of liability
insurance in New York State.
One cause of the problem is the randomness by which verdicts in medical
liability lawsuits are reached. Numerous studies have concluded that the
civil justice system frequently produces awards to plaintiffs in medical
liability actions where there has been no negligence and, conversely,
results in no payment to the plaintiff when there has been error. Often
virtually the same facts will produce an award in one case but a verdict
for the defendant in another. There is a lack of consistency in liti-
gation outcome. As a result, this has led to numerous settlements in
medical liability actions due to concern that the severity of an injury
will result in a jury verdict for the plaintiff even if no negligence
has been committed, with the effect that medical liability insurance
costs are driven up substantially.
This legislation would begin to take steps to facilitate a more objec-
tive analysis of medical liability disputes. Like statutes already
passed in many other states in the country, this bill would assure that
an expert witness who testifies in a medical liability action has a
similar educational and treating background as the defendant health care
provider. The bill would also remove a provision that currently exists
under New York law that prohibits the disclosure of the identity of an
expert witness who is to testify at a medical liability trial. This rule
applies to no other type of action in New York State, and runs complete-
ly contrary to the whole premise of modern jurisprudence which seeks the
early and complete exchange of information between litigants.
Moreover, this legislation would permit the creation of special courts
to hear medical malpractice cases in up to 5 counties in New York State.
Such courts would use specially trained judges who could call independ-
ent expert witnesses to provide greater clarity to the jury regarding
the specific care that is the subject of the lawsuit. Such courts hold
the promise of improving the reliability of the system of resolving
medical liability disputes, which could ultimately result in reducing
the cost of medical liability insurance for physicians and hospitals.
Importantly for injured plaintiffs, the bill would not impact upon the
damages that such plaintiff could receive.
This bill would take important first steps to reduce the increasingly
unaffordable cost of medical liability insurance by better facilitating
an objective analysis of medical liability disputes without limiting the
ability of a plaintiff to bring an action or to be compensated for
negligent actions on the part of health care providers.
 
LEGISLATIVE HISTORY:
New bill.
 
FISCAL IMPLICATIONS:
Undetermined.
 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.