In Medical Malpractice Action, Plaintiff's Failure To Serve A Certificate Of Merit Pursuant To The Pleading Requirements Of CPLR 3012-a Can No Longer Be Ignored
September, 2004
There is no reason to wait for tort reform in New York. If the New York State Legislature is serious about reducing the number of frivolous medical malpractice claims, and in turn ensuring the availability and affordability of quality health services, the Legislature will expressly authorize the sanction of dismissal for failing to serve a Certificate of Merit with the Complaint, and require a reasonable excuse and an Affidavit of Merit from a physician in order to vacate this pleading default.
In 1986, the Legislature enacted a package of amendments with the stated preface that without ameliorating legislation the “upward pressures on already high medical malpractice premiums” that doctors have to pay on their insurance policies will “threaten the public health by discouraging physicians and dentists from initiating or continuing their practice in New York.” See Section One of Chapter 266 of the Laws of 1986.
Included in these amendments was CPLR §3012-a which requires all medical malpractice complaints to be accompanied by a certificate by plaintiff’s counsel that s/he has reviewed the facts of the case and has consulted with at least one physician who believes there is a reasonable basis for commencing the action. Soon after its enactment, the Second Department issued the seminal case in the area, albeit short-lived, holding that a plaintiff’s failure to serve the certificate pursuant to CPLR §3012-a was the same as a default in pleading and can therefore be grounds for dismissal. Santangelo v. Raskin, 137 A.D.2d 74, 528 N.Y.S.2d 90 (2d Dep’t 1988). Moreover, the court held that in order to avoid dismissal, a plaintiff must demonstrate a reasonable excuse for the default and legal merit to the claim (i.e., an affidavit from a physician as opposed to an attorney). Id. at 93. To arrive at its decision given the absence of the sanction in the statute, the court found a basis in the legislative intent, which usually creates a slippery slope. In any event, the court cited the mandatory language of the statute as well as the legislative findings that accompanied the amendment -- “to improve the quality of medical malpractice adjudication and deter the commencement of frivolous cases.” Id. at 92 and Section One of Chapter 266 of the Laws of 1986.
As all good things must come to an end, so did the rule in Santangelo, or maybe not, depending on which Department is interpreting the statute. The uncertainty stems from the Court of Appeals decision in Tewari v. Tsoutsouras, 75 N.Y2d 1, 550 N.Y.S.2d 572, 549 N.E.2d 1143 (1989), which addressed another medical malpractice section in the CPLR relating to discovery proceedings, a Notice of Medical Malpractice. See CPLR § 3046.
As background, pursuant to CPLR §3406, plaintiffs are required to file with the Clerk of the Court, no more than sixty days after issue is joined, a notice advising that a medical malpractice action has been commenced and accompany such notice with the following: 1) proof of service of such notice upon all parties; 2) proof that authorizations to obtain medical records have been served upon the defendants; and 3) such other papers as may be required to be filed by rule of the Chief Administrator of the Courts. This discovery section of the CPLR was intended by the Legislature to expedite discovery so that medical malpractice files will not languish in the file cabinets of an attorney’s office and will trigger a pre-calendar conference. See Tewari v. Tsoutsouras, 75 N.Y2d 1, 550 N.Y.S.2d 572, 549 N.E.2d 1143 (1989).
Returning to Tewari, the Court of Appeals, recognizing that “sanctions may not be imposed by ad hoc judicial decision-making,” held that there was no authority in the relevant statute for the imposition of the sanction of dismissal for plaintiff’s noncompliance with the notice requirement of CPLR §3406. Id. at 576. Importantly, the Court also stated that failure to timely file the notice under CPLR §3406(a) is not analogous to a pleading default since the notice requirement is a rule of calendar practice which functions to trigger the pre-calendar conference. Id. at 577.
In the wake of Tewari, the New York Appellate Departments have been divided in deciding the appropriate sanction for noncompliance with CPLR §3012-a. For example, the First Department has adhered to the Santangelo rule. See Perez v. Lenox Hill Hospital, 159 A.D.2d 251, 552 N.Y.S.2d 244 (1st Dep’t 1990)(plaintiff’s failure to file a Certificate of Merit is a pleading defect, requiring dismissal unless plaintiff can establish a reasonable excuse for the default or a meritorious cause of action.); and George v. St. John’s Riverside Hospital, 162 A.D.2d 140, 556 N.Y.S.2d 85 (1st Dep’t 1990).
On the other hand, the Second Department as well as the Appellate Term of the Second and Eleventh Judicial Districts did not adhere to Santangelo, in Kolb v. Strogh, 158 A.D.2d 15, 558 N.Y.S.2d 549 (2d Dep’t 1990), and Darmony v. Staten Island University Hospital, 2 Misc.3d 136, 2004 WL 771489 (N.Y.Sup. App. Term 3/31/04), respectively. In Kolb, the Second Department citing Tewari held that the Legislature failed to confer on the judiciary any power to enforce CPLR §3012-a directly and therefore the enforcement of this section depends upon a defendant moving for an order of compliance, and if a dilatory plaintiff is so neglectful as to disobey such an order, then sanctions, including the sanction of dismissal, may be imposed. Id. at 553.
However, the Second Department’s decision in Kolb is misguided as it failed to recognize the distinctions between the respective statues and its holding effectively minimized the importance of CPLR §3012-a by stripping the statute of its teeth and undercutting the legislative intent to reduce frivolous medical malpractice actions. Specifically, by applying the identical analysis to both statutes, the Second Department has effectively lumped pleadings in with discovery and has failed to recognize the distinct purpose of each statute -- one to reduce frivolous claims (CPLR §3012-a) and the other to expedite discovery (CPLR §3406).
Irrespective of a liberal or conservative interpretation of the statutory scheme, the one unifying issue is that the Legislature should take some action considering the Court of Appeals punted the issue to the lawmakers in Albany in Tewari and there is a division among the Departments. If the Legislature is truly interested in reducing the number of frivolous medical malpractice claims then it will expressly provide the courts with the sanction of dismissal under CPLR §3012-a.
Learning Point:
Defense attorneys can push the issue along by no longer looking passed noncompliance with CPLR §3012-a and move to dismiss and/or compel the Certificate of Merit which is required by statute. At the very least, in the Second Department, defense attorneys should acquire a court order requiring compliance with the CPLR, which order can ultimately be the basis for a motion to dismiss. In the First Department, if a medical malpractice case is not dismissed outright, defense counsel should obtain an Affidavit of Merit from a physician which helps further sharpen the issues and better represent the interests of liability carriers. •
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