Relates to the use of expert medical testimony; creates the health care courts pilot program; creates a new element of professional misconduct for providing expert witness testimony that is without reasonable medical foundation.

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A5465-2011 Actions

• Apr 20, 2011: enacting clause stricken
• Feb 22, 2011: referred to codes

A5465-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    5465

                         2011-2012 Regular Sessions

                            I N  ASSEMBLY

                              February 22, 2011
                                 ___________

  Introduced  by M. of A. TOWNS -- read once and referred to the Committee
    on Codes

  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:


    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  infor-
  mation  concerning such experts otherwise required by this paragraph] NO
  INDIVIDUAL SHALL BE QUALIFIED TO TESTIFY AS  AN  EXPERT  WITNESS  UNLESS
  SUCH  INDIVIDUAL  IS  A HEALTH CARE PROFESSIONAL WHO: (A) IS LICENSED TO
  PRACTICE IN AT LEAST ONE STATE IN THE SAME PROFESSION AS THE  DEFENDANT;

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD07098-01-1

 A. 5465                             2

  (B) IS ACTIVELY ENGAGED IN CLINICAL PRACTICE OR TEACHING AND EXPERIENCED
  IN  THE  CARE  AT ISSUE; AND (C) IF THE DEFENDANT IS BOARD CERTIFIED AND
  THE STANDARD OF CARE AT ISSUE INVOLVES HIS OR HER SPECIALTY, THE  EXPERT
  MUST BE BOARD CERTIFIED IN THE SAME SPECIALTY.
    S  2.  Subparagraph  (ii) of paragraph 1 of subdivision (d) of section
  3101 of the civil practice law and rules is REPEALED and a new  subpara-
  graph (ii) is added to read as follows:

    (II) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE OR OF ARTICLE
  THIRTY-TWO  OF  THIS CHAPTER, IN AN ACTION FOR MEDICAL, DENTAL OR PODIA-
  TRIC MALPRACTICE, AT THE TIMES AND  IN  THE  SEQUENCE  DIRECTED  BY  THE
  COURT,  SUCH  TIMES  TO  BE PRIOR TO THE SERVICE AND FILING OF A NOTE OF
  ISSUE UNLESS THE COURT DIRECTS OTHERWISE  AND  PRESERVES  THE  RIGHT  OF
  EVERY PARTY TO DEPOSE A PERSON WHOSE DISCLOSURE OCCURS SUBSEQUENT TO THE
  FILING  OF  A  NOTE  OF  ISSUE,  EACH  PARTY SHALL DISCLOSE TO THE OTHER
  PARTIES THE IDENTITY OF ANY PERSON WHO MAY BE USED AT TRIAL  TO  PROVIDE
  EXPERT  TESTIMONY IN THE CASE AND EACH SUCH DISCLOSURE SHALL BE ACCOMPA-
  NIED BY A WRITTEN REPORT PREPARED AND SIGNED BY SUCH PERSON. THE  REPORT
  SHALL  CONTAIN  A COMPLETE STATEMENT OF ALL OPINIONS TO BE EXPRESSED AND
  THE BASIS AND REASONS THEREFOR; 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 PRECED-
  ING FOUR YEARS. EACH PARTY SHALL BE REQUIRED TO PRODUCE EACH  PERSON  SO
  IDENTIFIED BY SUCH PARTY AS AN EXPERT WITNESS, FOR EXAMINATION UPON ORAL
  DEPOSITION  UPON  RECEIPT OF A NOTICE TO TAKE ORAL DEPOSITION IN ACCORD-
  ANCE WITH RULE THIRTY-ONE HUNDRED SEVEN OF THIS ARTICLE. 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 REASON-
  ABLE FEE FOR TIME SPENT IN ATTENDING SUCH ORAL DEPOSITION. IF ANY  PARTY
  FAILS  TO  IDENTIFY A PERSON AS AN EXPERT WITNESS IN ACCORDANCE WITH THE
  PROVISIONS OF THIS SUBPARAGRAPH, OR IF  ANY  PARTY  FAILS  TO  MAKE  ANY
  PERSON  IDENTIFIED  BY THE PARTY AS AN EXPERT WITNESS AVAILABLE FOR ORAL
  DEPOSITION IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBPARAGRAPH,  SUCH
  PARTY  SHALL  BE  PRECLUDED FROM OFFERING SUCH EXPERT'S TESTIMONY AT THE
  TRIAL OF THE ACTION.
    S 3. The civil practice law and rules is amended by adding a new arti-
  cle 44-A to read as follows:

                                ARTICLE 44-A
                      HEALTH CARE COURTS PILOT PROGRAM
  SECTION 4410. CREATION.
          4411. HEALTH CARE COURT JUDGES; SELECTION.
          4412. JUDICIAL TRAINING.
          4413. COURT APPOINTED MEDICAL EXPERTS.
          4414. PROCEDURE.
          4415. APPELLATE REVIEW.
          4416. REPORTS.
          4417. DISCLAIMER.
    S 4410. CREATION. THE OFFICE OF COURT ADMINISTRATION MAY SELECT UP  TO
  FIVE  COUNTIES,  EACH WITHIN A SEPARATE JUDICIAL DISTRICT IN THIS STATE,
  TO ESTABLISH SPECIALIZED HEALTH CARE COURTS WITHIN THE SUPREME COURT  OF
  SUCH COUNTIES TO GOVERN CLAIMS FOR MEDICAL, DENTAL OR PODIATRIC MALPRAC-
  TICE AS SET FORTH IN THIS SECTION. ONCE A SUPREME COURT WITHIN A PARTIC-

 A. 5465                             3

  ULAR  COUNTY  HAS  ESTABLISHED  A HEALTH CARE COURT AS SET FORTH IN THIS
  SECTION, SUCH COURT SHALL  HAVE  EXCLUSIVE  JURISDICTION  OVER  ALL  THE
  CLAIMS  FOR  MEDICAL, DENTAL OR PODIATRIC MALPRACTICE BROUGHT WITHIN THE
  SUPREME COURT OF SUCH COUNTY.
    S  4411. HEALTH CARE COURT JUDGES; SELECTION. JUDGES SHALL BE SELECTED
  TO SERVE IN THE HEALTH CARE COURT DIVISION FROM AMONG THOSE  JUDGES  WHO
  ARE  ELECTED  OR  APPOINTED TO THE SUPREME COURT IN A COUNTY SELECTED TO
  PARTICIPATE IN THE HEALTH CARE COURTS PILOT PROGRAM.   FOR THE  PURPOSES
  OF THIS ARTICLE, "JUDGE" SHALL MEAN A JUDGE OF THE HEALTH CARE DIVISION.
    S  4412. JUDICIAL TRAINING. (A) UPON SELECTION OF A PARTICULAR SUPREME
  COURT JUDGE TO HEAR CASES IN THE COUNTY'S HEALTH CARE COURT AND PRIOR TO
  HEARING SUCH CASES,  EACH  JUDGE  SHALL  COMPLETE  A  JUDICIAL  TRAINING
  PROGRAM  ON  THE  LAW  AND SCIENCE OF MEDICINE THAT MAY BE THE BASIS FOR
  CASES FALLING UNDER THE JURISDICTION OF  THE  HEALTH  CARE  COURT.  SUCH
  PROGRAM SHALL BE ADMINISTERED BY THE OFFICE OF COURT ADMINISTRATION.
    (B)  A  COMMITTEE  SHALL  BE  CREATED TO DEVELOP THE CURRICULUM OF THE
  JUDICIAL TRAINING PROGRAM. A TASK FORCE  SHALL  BE  COORDINATED  BY  THE
  OFFICE  OF  COURT  ADMINISTRATION AND SHALL INCLUDE EQUAL REPRESENTATION
  FROM THE MEDICAL SOCIETY OF THE STATE OF NEW YORK AND THE NEW YORK STATE
  BAR ASSOCIATION.
    (C) THE CURRICULUM TO BE CREATED PURSUANT TO SUBDIVISION (B)  OF  THIS
  SECTION SHALL INCLUDE BOTH IN-CLASSROOM CLINICAL TRAINING AND AN INTERN-
  SHIP.  THE  IN-CLASSROOM  CLINICAL TRAINING SHALL INCLUDE AT THE MINIMUM
  THE FOLLOWING: AN OVERVIEW OF  THE  MAJOR  BODY  SYSTEMS,  PHARMACOLOGY,
  COMMON DISEASE PATHOLOGY, ALTERNATIVE MEDICINE THERAPIES, AND THE EDUCA-
  TION AND TRAINING REQUIRED FOR VARIOUS HEALTH PROFESSIONALS. THE INTERN-
  SHIP  SHALL  PROVIDE JUDGES AN OPPORTUNITY TO FOLLOW A PRACTICING PHYSI-
  CIAN AND OTHER  HEALTH  CARE  PROFESSIONALS  IN  DIFFERENT  HEALTH  CARE
  SETTINGS.  THE TRAINING PROGRAM MAY ALSO INCLUDE A LEGAL COMPONENT WHICH
  SHALL INCLUDE A REVIEW OF MEDICAL LEGAL ISSUES THAT MAY BE THE BASIS  OF
  CASES FALLING UNDER THE JURISDICTION OF THE HEALTH CARE COURT.
    S  4413.  COURT  APPOINTED  MEDICAL EXPERTS. (A) THE HEALTH CARE COURT
  SHALL MAINTAIN A LIST OF QUALIFIED MEDICAL EXPERTS WHO MAY  BE  UTILIZED
  BY  THE  COURT TO PROVIDE INDEPENDENT EXPERT OPINIONS TO THE JUDGE. SUCH
  EXPERTS MAY PROVIDE OPINIONS IN WRITING TO THE JUDGE OR MAY BE CALLED BY
  THE JUDGE TO TESTIFY BEFORE THE COURT TO CLARIFY  OR  INTERPRET  MEDICAL
  TESTIMONY OR EVIDENCE, OR FOR ANY OTHER PURPOSE THE JUDGE DEEMS RELEVANT
  TO THE PROCEEDINGS.
    (B)  A  COURT APPOINTED MEDICAL EXPERT MUST MEET THE FOLLOWING MINIMUM
  EXPERT WITNESS REQUIREMENTS:

    (1) HOLDS AN ACTIVE LICENSE IN THE SAME PROFESSION AS  THE  DEFENDANT.
  IF  THE  DEFENDANT  IS  LICENSED TO PRACTICE MEDICINE IN THIS STATE, THE
  EXPERT WITNESS MUST ALSO BE LICENSED TO PRACTICE MEDICINE IN THIS STATE;
    (2) IS TRAINED AND EXPERIENCED IN THE SAME  DISCIPLINE  OR  SCHOOL  OF
  PRACTICE  AS  THE  DEFENDANT  AND  CAN DEMONSTRATE BY COMPETENT EVIDENCE
  THAT, AS A RESULT OF TRAINING,  EDUCATION, KNOWLEDGE, AND EXPERIENCE  IN
  THE  EVALUATION, DIAGNOSIS, AND TREATMENT OF THE DISEASE OR INJURY WHICH
  IS THE SUBJECT MATTER OF THE LAWSUIT AGAINST THE DEFENDANT, THE INDIVID-
  UAL WAS SUBSTANTIALLY FAMILIAR WITH THE APPLICABLE STANDARDS OF CARE AND
  PRACTICE AS THEY RELATE TO THE ACT OR OMISSION WHICH IS THE  SUBJECT  OF
  THE LAWSUIT ON THE DATE OF THE INCIDENT;
    (3)  IF THE DEFENDANT IS CERTIFIED BY A BOARD RECOGNIZED BY THE AMERI-
  CAN BOARD OF MEDICAL SPECIALITIES OR THE  AMERICAN  OSTEOPATHIC  ASSOCI-
  ATION,  THE  EXPERT  MUST  BE CERTIFIED IN THE SAME SPECIALTY BY A BOARD
  RECOGNIZED BY THE AMERICAN BOARD OF MEDICAL SPECIALITIES OR THE AMERICAN
  OSTEOPATHIC ASSOCIATION AND MUST HAVE ACKNOWLEDGED EXPERTISE AND  TRAIN-

 A. 5465                             4

  ING  DIRECTLY  RELATED TO THE PARTICULAR HEALTH CARE OR MATTER AT ISSUE;
  AND
    (4)  WITHIN  FIVE  YEARS  OF THE DATE OF THE ALLEGED OCCURRENCE GIVING
  RISE TO THE CLAIM, WAS IN ACTIVE MEDICAL PRACTICE IN THE SAME DISCIPLINE
  OR SCHOOL OF PRACTICE AS THE DEFENDANT OR DEVOTED A SUBSTANTIAL  PORTION
  OF  HIS TIME TEACHING AT AN ACCREDITED MEDICAL SCHOOL, OR IN UNIVERSITY-
  BASED RESEARCH IN RELATION TO THE MEDICAL CARE AND TYPE OF TREATMENT  AT
  ISSUE.
    (C)  A  COURT APPOINTED MEDICAL EXPERT SHALL HAVE NO FINANCIAL TIES OR
  FAMILIAL RELATIONSHIP WITH ANY PARTY TO THE LAWSUIT, ANY  EXPERT  CALLED
  TO TESTIFY, OR ANY ATTORNEY REPRESENTING ANY PARTY TO THE LAWSUIT.
    (D) THE COURT APPOINTED MEDICAL EXPERT SHALL HAVE NO EX PARTE COMMUNI-
  CATIONS WITH ANY PARTY TO THE LAWSUIT, EXCEPT AS PERMITTED BY THE COURT.
    (E)  THE  PLAINTIFF  AND  DEFENDANT SHALL EQUALLY COMPENSATE THE COURT
  APPOINTED MEDICAL EXPERT BASED ON THE PREVAILING FEE FOR MEDICAL EXPERTS
  WITH SIMILAR QUALIFICATIONS.
    S 4414. PROCEDURE. CLAIMS ADJUDICATED THROUGH THE  HEALTH  CARE  COURT
  SHALL  ADHERE  TO  THIS CHAPTER EXCEPT AS OTHERWISE PROVIDED FOR IN THIS
  ARTICLE.
    S 4415. APPELLATE REVIEW. ANY PARTY TO AN  ACTION  IN  A  HEALTH  CARE
  COURT  MAY AVAIL THEMSELVES OF ALL APPEAL RIGHTS THAT OTHERWISE WOULD BE
  AVAILABLE UNDER THIS CHAPTER.
    S 4416. REPORTS. THE OFFICE OF COURT ADMINISTRATION  SHALL  SUBMIT  AN
  ANNUAL REPORT TO THE SPEAKER OF THE ASSEMBLY, THE TEMPORARY PRESIDENT OF
  THE  SENATE,  THE  MINORITY LEADER OF THE SENATE, THE MINORITY LEADER OF
  THE ASSEMBLY AND THE GOVERNOR DESCRIBING THE FUNCTIONING OF  THE  HEALTH
  CARE  COURTS,  INCLUDING  THE NUMBER OF DISPUTES HEARD BY THE COURTS AND
  RECOMMENDATIONS FOR IMPROVING THE ABILITY  OF  SUCH  COURTS  TO  RESOLVE
  CLAIMS INVOLVING MEDICAL, DENTAL OR PODIATRIC MALPRACTICE.
    S  4417.  DISCLAIMER.  NOTHING  IN  THIS ARTICLE SHALL BE CONSTRUED TO
  REMOVE THE JURY AS THE ULTIMATE FINDER OF FACT IN AN ACTION FOR MEDICAL,
  DENTAL OR PODIATRIC MALPRACTICE.
    S 4. Section 6530 of the education law is  amended  by  adding  a  new
  subdivision 50 to read as follows:

    50.  PROVIDING  EXPERT  MEDICAL  TESTIMONY THAT IS FALSE OR COMPLETELY
  WITHOUT REASONABLE MEDICAL FOUNDATION IN ANY ACTION FOR INJURY OR  DEATH
  ARISING  OUT  OF  THE  PROVISION  OF  OR  FAILURE TO PROVIDE HEALTH CARE
  SERVICES. AS USED IN THIS SUBDIVISION, TESTIMONY MAY BE CONSIDERED FALSE
  OR COMPLETELY WITHOUT REASONABLE MEDICAL FOUNDATION IF  IT  WAS  WITHOUT
  FOUNDATION IN ACCEPTED PEER REVIEWED SCIENCE-BASED MEDICAL RESEARCH.
    S  5.  This  act shall take effect on the ninetieth day after it shall
  have become a law.