N.Y. Civil Practice Law & Rules § 3012-a: Certificate of merit in medical, dental and podiatric malpractice actions

§ 3012-a. Certificate of merit in medical, dental and podiatric

malpractice actions. (a) In any action for medical, dental or podiatric

malpractice, the complaint shall be accompanied by a certificate,

executed by the attorney for the plaintiff, declaring that:

(1) the attorney has reviewed the facts of the case and has consulted

with at least one physician in medical malpractice actions, at least one

dentist in dental malpractice actions or at least one podiatrist in

podiatric malpractice actions who is licensed to practice in this state

or any other state and who the attorney reasonably believes is

knowledgeable in the relevant issues involved in the particular action,

and that the attorney has concluded on the basis of such review and

consultation that there is a reasonable basis for the commencement of

such action; or

(2) the attorney was unable to obtain the consultation required by

paragraph one of this subdivision because a limitation of time,

established by article two of this chapter, would bar the action and

that the certificate required by paragraph one of this subdivision could

not reasonably be obtained before such time expired. If a certificate is

executed pursuant to this subdivision, the certificate required by this

section shall be filed within ninety days after service of the

complaint; or

(3) the attorney was unable to obtain the consultation required by

paragraph one of this subdivision because the attorney had made three

separate good faith attempts with three separate physicians, dentists or

podiatrists, in accordance with the provisions of paragraph one of this

subdivision to obtain such consultation and none of those contacted

would agree to such a consultation.

(b) Where a certificate is required pursuant to this section, a single

certificate shall be filed for each action, even if more than one

defendant has been named in the complaint or is subsequently named.

(c) Where the attorney intends to rely solely on the doctrine of "res

ipsa loquitur", this section shall be inapplicable. In such cases, the

complaint shall be accompanied by a certificate, executed by the

attorney, declaring that the attorney is solely relying on such doctrine

and, for that reason, is not filing a certificate required by this

section.

(d) If a request by the plaintiff for the records of the plaintiff's

medical or dental treatment by the defendants has been made and such

records have not been produced, the plaintiff shall not be required to

serve the certificate required by this section until ninety days after

such records have been produced.

(e) For purposes of this section, and subject to the provisions of

section thirty-one hundred one of this chapter, an attorney who submits

a certificate as required by paragraph one or two of subdivision (a) of

this section and the physician, dentist or podiatrist with whom the

attorney consulted shall not be required to disclose the identity of the

physician, dentist or podiatrist consulted and the contents of such

consultation; provided, however, that when the attorney makes a claim

under paragraph three of subdivision (a) of this section that he was

unable to obtain the required consultation with the physician, dentist

or podiatrist, the court may, upon the request of a defendant made prior

to compliance by the plaintiff with the provisions of section thirty-one

hundred of this chapter, require the attorney to divulge to the court

the names of physicians, dentists or podiatrists refusing such

consultation.

(f) The provisions of this section shall not be applicable to a

plaintiff who is not represented by an attorney.

(g) The plaintiff may, in lieu of serving the certificate required by

this section, provide the defendant or defendants with the information

required by paragraph one of subdivision (d) of section thirty-one

hundred one of this chapter within the period of time prescribed by this

section.