STATE OF NEW YORK
       ________________________________________________________________________
 
                                         2864
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                   February 22, 2001
                                      ___________
 
       Introduced  by  Sens.  BALBONI,  ALESI,  DeFRANCISCO  --  read twice and
         ordered printed, and when printed to be committed to the Committee  on
         Codes
 
       AN  ACT to amend the civil practice law and rules, in relation to creat-
         ing a cause of action for medical abandonment
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section 1. The civil practice law and rules is amended by adding a new
    2  section 213-c to read as follows:
    3    §  213-c. Medical abandonment. Notwithstanding any provision of law to
    4  the contrary, an action to recover damages for personal injury or wrong-
    5  ful death caused  by  the  arbitrary,  capricious,  negligent  or  other
    6  tortious  decision  of a health maintenance organization or medical care
    7  facility to withhold or  diminish  medical  care  or  treatment  may  be
    8  commenced  within  three  years  from the date of such decision. For the
    9  purposes of this section, "health maintenance  organization"  means  any
   10  person,  natural  or  corporate, or any groups of such persons who enter
   11  into an arrangement, agreement or plan or any  combination  of  arrange-
   12  ments or plans which propose to provide or offer, or which do provide or
   13  offer, a comprehensive health services plan; and "medical care facility"
   14  means  a  facility  certified pursuant to article twenty-eight or forty-
   15  four of the public health law.
   16    § 2. This act shall take effect immediately.
 
 
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07004-01-1

 
BILL NUMBER: S2864
 
SPONSOR: BALBONI

 
TITLE:  AN ACT to amend the civil practice law and rules, in relation
to creating a cause of action for medical abandonment.
 
 
PURPOSE:  To amend the civil practice law and rules, in relation to
creating a cause of action for medical abandonment.
 
 
SUMMARY OF PROVISIONS:  Section 1 amends Section 213 of the Civil
Practice Law and Rules by adding a new section 213-c to the Civil Prac-
tice Law and Rules to permit an action to recover damages for personal
injury or wrongful death caused by the arbitrary, capricious, negligent
or other tortious decision of a health maintenance organization or other
medical care facility to withhold or diminish treatment within three
years of the date of such a decision.
 
Section 2 establishes an effective date.
 
 
JUSTIFICATION:  This bill is designed to address the cessation or
removal of care by the decision of a health maintenance organization
(HMO). Medical providers are currently caught in the middle of a conund-
rum:  provide the care to their patients and face the removal from the
HMO lists of physicians, or limit or curtail their treatment within the
guidelines placed upon them by remote HMO bureaucracies.
 
An administrative decision by an HMO to withhold treatment currently has
no recourse other than in contract. Under New York State common law,
however, consequential damages cannot be recovered in the basis of a
contract action. In order to recover for consequential damages, the
action must be in tort, which this bill creates.
 
HMO's must be accountable for their decisions to deny or provide medical
care. This bill creates a direct right of action against an HMO for
their tortious interference which results in medical abandonment.
 
 
LEGISLATIVE HISTORY:  2000 - S.849 Referred to Codes
 
1999 - S.849 Referred to Codes
 
1998 - S.6553 Referred to Codes.
 
 
FISCAL IMPLICATIONS:  None to the State
 
 
EFFECTIVE DATE:  This act shall take effect immediately.