STATE OF NEW YORK
       ________________________________________________________________________
 
                                          156
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                      (Prefiled)
 
                                    January 3, 2001
                                      ___________
 
       Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
         printed to be committed to the Committee on Health
 
       AN ACT to amend the public health law, the  county  law  and  the  civil
         practice  law  and  rules,  in relation to review and investigation of
         claims of professional medical misconduct or medical  malpractice  and
         requirements for the filing of such claims
 
         The  People of the State of New York, represented in Senate and Assem-
       bly, do enact as follows:
 
    1    Section 1.  Section 230 of the public health law is amended by  adding
    2  a new subdivision 12-a to read as follows:
    3    12-a.  (a)  Upon  receipt  by the commissioner of a report identifying
    4  claims of medical malpractice, as required by paragraphs one and two  of
    5  subsection  (b)  of section three hundred fifteen  of the insurance law,
    6  the commissioner shall immediately refer the same to the state board for
    7  professional medical conduct for an expedited review to determine wheth-
    8  er the said claims involve professional misconduct as defined by  subdi-
    9  visions  three,  four, five and six of section six thousand five hundred
   10  thirty of the education law. Each such claim which alleges  professional
   11  misconduct, as defined in subdivisions three, four, five and six of such
   12  section six thousand five hundred thirty, shall be referred for an expe-
   13  dited investigation in accordance with the provisions of subdivision ten
   14  of this section.
   15    (b)  Upon  receipt  by  the  commissioner  of  a copy of a summons and
   16  complaint which alleges professional medical misconduct  and/or  medical
   17  malpractice,  as  required  by  section  five hundred thirty-five of the
   18  county law, the commissioner shall immediately refer same to  the  state
   19  board  for  professional  medical  conduct,  for  an expedited review to
   20  determine whether said allegations involve  professional  misconduct  as
   21  defined  by  subdivisions three, four, five and six of section six thou-
   22  sand five hundred thirty of the education law.  Each  such  summons  and
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03383-01-1

       S. 156                              2
 
    1  complaint which alleges professional  misconduct, as defined in subdivi-
    2  sions  three,  four,  five  and  six  of  such section six thousand five
    3  hundred thirty, shall be referred  for  an  expedited  investigation  in
    4  accordance with the provisions of subdivision ten of this section.
    5    §  2. The county law is amended by adding a new section 535 to read as
    6  follows:
    7    § 535. Reporting of professional  medical  misconduct  and/or  medical
    8  malpractice.  Upon  the  filing of a summons and complaint which alleges
    9  professional medical misconduct and/or medical malpractice  pursuant  to
   10  section  three  hundred  four  of  the civil practice law and rules, the
   11  county clerk shall forward a copy of same to the commissioner of health.
   12    § 3. Section 304 of the civil practice law and rules,  as  amended  by
   13  chapter 367 of the laws of 1999, is amended to read as follows:
   14    § 304. Method of commencing action or special proceeding. An action is
   15  commenced  by  filing  a  summons  and complaint or summons with notice;
   16  except that where an action alleges medical malpractice or  professional
   17  medical  misconduct,  two  copies  of said summons and complaint must be
   18  filed with said clerk of the court with a notice on  the  front  of  the
   19  summons  stating  that such action alleges such conduct; provided that a
   20  failure to file a second copy with the county clerk shall not be grounds
   21  for dismissal of any action initiated  pursuant  to  this  chapter;  and
   22  provided  further  that  said failure to file such second copy shall not
   23  relieve the county clerk from the obligation to forward a  copy  of  the
   24  filed  pleading  to  the commissioner of health. A special proceeding is
   25  commenced by filing a notice of petition or order to show  cause  and  a
   26  petition.  Where  a  court  finds  that  circumstances prevent immediate
   27  filing, the signing of an order requiring the  subsequent  filing  at  a
   28  specific  time  and  date  not  later  than  five  days thereafter shall
   29  commence the action. For purposes of this section, and for  purposes  of
   30  section  two  hundred  three  of  this chapter and section three hundred
   31  six-a of this article, filing shall mean the  delivery  of  the  summons
   32  with  notice, summons and complaint, notice of petition or order to show
   33  cause to the clerk of the court in the county in  which  the  action  or
   34  special  proceeding  is  brought  or  any other person designated by the
   35  clerk of the court for that purpose together with any  fee  required  as
   36  specified  in  rule  twenty-one  hundred two of this chapter for filing.
   37  Notwithstanding any other provision of law, such delivery may be  accom-
   38  plished  by  facsimile  transmission  or electronic means, as defined in
   39  subdivision (f) of rule twenty-one hundred three of this chapter,  where
   40  and in the manner authorized by the chief administrator of the courts by
   41  rule.  At  the time of filing, the filed papers shall be date stamped by
   42  the clerk of the court who shall file them and maintain a record of  the
   43  date  of  the filing and who shall return forthwith a date stamped copy,
   44  together with an index number, to the filing party. Where filing  is  by
   45  facsimile  transmission,  the  clerk of the court need only return dated
   46  stamped copy of the first page of the  papers  initiating  the  lawsuit,
   47  together with the index number. Where filing is by electronic means, the
   48  clerk  shall, in accordance with rules promulgated by the chief adminis-
   49  trator, forthwith notify the filing party of the index  number  and  the
   50  date  and  time  of filing. A confirmation record produced by the filing
   51  party's facsimile machine or computer and an affidavit of filing by  the
   52  filing party, shall be prima facie evidence that the filing party trans-
   53  mitted  documents  consistent with the date, time and place appearing on
   54  the confirmation record.
   55    § 4. Section 304 of the civil practice law and rules,  as  amended  by
   56  chapter 606 of the laws of 1996, is amended to read as follows:

       S. 156                              3
 
    1    §  304.  Method of commencing action or special proceeding.  An action
    2  is commenced by filing a summons and complaint or summons  with  notice;
    3  except  that where an action alleges medical malpractice or professional
    4  medical misconduct, two copies of said summons  and  complaint  must  be
    5  filed  with  said  clerk  of the court with a notice on the front of the
    6  summons stating that such action alleges such conduct; provided  that  a
    7  failure to file a second copy with the county clerk shall not be grounds
    8  for  dismissal  of  any  action  initiated pursuant to this chapter; and
    9  provided further that said failure to file such second  copy  shall  not
   10  relieve  the  county  clerk from the obligation to forward a copy of the
   11  filed pleading to the commissioner of health. A  special  proceeding  is
   12  commenced  by  filing  a notice of petition or order to show cause and a
   13  petition.   Where a court finds  that  circumstances  prevent  immediate
   14  filing,  the  signing  of  an order requiring the subsequent filing at a
   15  specific time and  date  not  later  than  five  days  thereafter  shall
   16  commence  the action.  For purposes of this section, and for purposes of
   17  sections two hundred three and three  hundred  six-a  of  this  chapter,
   18  filing  shall  mean the delivery of the summons with notice, summons and
   19  complaint, notice of petition or order to show cause to the clerk of the
   20  court in the county in which the action or special proceeding is brought
   21  or any other person designated by  the  clerk  of  the  court  for  that
   22  purpose  together  with any fee required as specified in rule twenty-one
   23  hundred two of this chapter for filing.   At such time  of  filing,  the
   24  original  and  a  copy  of  such papers shall be date stamped by a court
   25  clerk who shall file the original and maintain a record of the  date  of
   26  the  filing  and  who shall immediately return the copy to the party who
   27  brought the filing.
   28    § 5. The opening paragraph of subdivision (a) of section 8018  of  the
   29  civil  practice  law and rules, as amended by chapter 190 of the laws of
   30  1990, is amended to read as follows:
   31    A county clerk is entitled, for the assignment of an index  number  to
   32  an  action  pending  in  a  court  of which he is clerk, to a fee of one
   33  hundred sixty-five dollars, payable in advance; except where  an  action
   34  alleges  medical malpractice or professional misconduct the county clerk
   35  is entitled to a fee of one hundred  seventy-five  dollars,  payable  in
   36  advance.
   37    § 6. This act shall take effect on the one hundred eightieth day after
   38  it shall have become a law provided, however, and except that the amend-
   39  ment  to section 304 of the civil practice law and rules made by section
   40  three of this act shall be deemed repealed  on  the  same  date  as  the
   41  amendment  to  section  304  of the civil practice law and rules made by
   42  section 1 of chapter 367 of the laws of 1999 is deemed repealed pursuant
   43  to section 10 of such chapter as from time to  time  amended  when  upon
   44  such date the provisions of section four of this act shall take effect.

 
BILL NUMBER: S156
 
SPONSOR: KRUGER

 
TITLE OF BILL:  An act to amend the public health law, the county law
and the civil practice law and rules, in relation to review and investi-
gation of claims of professional medical misconduct or medical malprac-
tice and requirements for the filing of such claims
 
 
SUMMARY OF PROVISIONS:
Amends the public health law by adding a new subdivision 12-a which will
require the Commissioner of Health to develop a program whereby a
certain number of malpractice claims brought against a physician will
trigger a mandatory review by the Board of Professional Medical Conduct.
The Board shall make a determination as to whether further investigation
and hearings are necessary.  In establishing the program, the Commis-
sioner shall take into account the specifics of a particular physician's
practice, including his specialty and the size and scope of his prac-
tice.
 
 
JUSTIFICATION:
In light of the current medical malpractice crisis it is imperative the
State take a more active role in removing incompetent or negligent
physicians.  A recent news story reported a physician with over 30
claims against him.  By instituting a procedure which would trigger a
mandatory review by the Board of Professional Medical Conduct after a
specified number of claims, this bill will help assure that the poten-
tially dangerous physician will not slip through the system.
 
The bill acknowledges that due to the speciality and the size of one's
practice, the likelihood for being subject to a malpractice suit varies
greatly.  By the nature of their practice, obstetrics and neurosurgeons
are subject to higher risk and allegations of malpractice. Consequently,
two or three suits filed against a neurosurgeon may be within the realm
of acceptability, while the same number of suits against a dermatologist
may indicate a problem. Therefore the bill requires the Commissioner to
take these factors into account when establishing numerical thresholds.
 
Since the Board of Professional Medical Conduct currently receives
information on every malpractice case that is filed, a centralized data
bank processing this information could be created and used for the
purposes of this bill.
 
 
FISCAL IMPLICATIONS:
None.
 
 
EFFECTIVE DATE:
180 days after it becomes law.