STATE OF NEW YORK
       ________________________________________________________________________
 
                                         3200
 
                              2001-2002 Regular Sessions
 
                   IN ASSEMBLY
 
                                   January 30, 2001
                                      ___________
 
       Introduced  by  M. of A. CANESTRARI, SEDDIO -- read once and referred to
         the Committee on Judiciary
 
       AN ACT to amend the civil practice law and rules,  in  relation  to  the
         filing of certificates of merit in medical, dental and podiatric malp-
         ractice actions
 
         The  People of the State of New York, represented in Senate and Assem-
       bly, do enact as follows:
 
    1    Section 1. Subdivision (b) of section 3012-a of the civil practice law
    2  and rules, as amended by chapter 507 of the laws of 1987, is amended  to
    3  read as follows:
    4    (b) Where a certificate is required pursuant to this section, a single
    5  certificate  shall  be  filed  for  each  action,  even if more than one
    6  defendant has been named in the  complaint  or  is  subsequently  named.
    7  Where a certificate is required pursuant to this section, the failure to
    8  timely  file such certificate shall require that the action be dismissed
    9  with prejudice.
   10    § 2. This act shall take effect immediately.
 
 
 
 
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07160-01-1

 
BILL NUMBER: A3200
 
SPONSOR: Canestrari (MS)

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the filing of certificates of merit in medical, dental and
podiatric malpractice actions
 
 
PURPOSE OR GENERAL IDEA OF BILL:
 
The bill would make the failure to timely file a certificate of merit in
a medical, dental, or podiatric malpractice action a grounds for the
dismissal of the action.
 
 
SUMMARY OF SPECIFIC PROVISIONS:
 
The bill would amend subdivision (b) of section 3012-a of the Civil
Practice Law and Rules.
 
Section 1 of the bill provides that the failure to file a required
certificate of merit within the time frames set by the statute shall
result in the dismissal of a malpractice case without the right to
refile the same case.
 
Section 2 of the bill provides that the bill shall take effect imme-
diately.
 
 
JUSTIFICATION:
 
Currently, the New York courts do not give any substantive effect to
failures to file certificates of merit in medical, dental and podiatric
malpractice actions, because the stature imposes no specific sanction
for failing to file the required certificate. The purpose of such
certificates of merit is to cut down on frivolous malpractice liti-
gation. Such unwarranted litigation has driven up the cost of malprac-
tice insurance for health care professionals and driven up the cost of
health care for the public. The certificate of merit requirement was
meant to be a meaningful check on such unwarranted litigation.  Instead,
it has been virtually nullified by the courts as such a check, because
the statute provides no consequence for failing to file the certificate
of merit. In the absence of such a statutory consequence, the courts
have held that the failure to file the certificate of merit can only
generate an application to the courts for an order that the certificate
be filed. This technical remedy borders on the silly, and makes the
certificate of merit a procedural joke rather than the important check
on frivolous litigation that it was meant to be.
 
The proposed bill restores the certificate of merit as a meaningful
check on frivolous malpractice litigation by making the failure to time-
ly file the required certificate a grounds for dismissal of the malprac-
tice action with prejudice. With a statutory consequence in place, the
certificate of merit will be able to achieve its intended purpose.
 
 
LEGISLATIVE HISTORY:
 
1999-00: A.8481/S.5289
 
 
FISCAL IMPLICATIONS:
 
NONE.
 
EFFECTIVE DATE:
 
Immediately.