190.000 MEDICAL MALPRACTICE / LIABILITY

190.981           Ask Gov to Form Medical Liability Commission

That our MSSNY, with our allies, formally and publicly propose to Governor Hochul that she empanel a Commission of Stakeholders, including business owners, attorneys, physicians, builders, etc., to evaluate NY’s entire Liability Landscape to reform NY’s Tort Law. (HOD 2025-65)

190.982        Allow Trained Professionals to Administer Immunizations at County Board of Health Program

The Medical Society of the State of New York (MSSNY) support state legislation or regulatory changes to allow any trained health care professional to provide immunizations through county boards of health programs with liability coverage through the state of New York, provided that they adhere to established protocols and training requirements. (HOD 2025-59)

190.983           Uniform Standard of Care in Liability Cases

MSSNY supports the concept that the standard of care applied in legal proceedings evaluating whether patient care was negligent should not vary based upon the licensure of the health care practitioner providing the care, provided that 1) the practitioner delivering the care is permitted to do so without physician supervision under state law and 2) it would not potentially subject physicians to greater liability exposure or increased liability insurance cost.

MSSNY will continue to work with other physician associations and patient groups to forcefully oppose legislation, regulation or Executive Orders that endanger patient safety through inappropriate expansion of scope of practice by non-physicians. (HOD 2021-51, referred to and adopted by Council 3/9/22, affirmed in lieu of Resolution 2023-61 Council meeting 1/18/24)

190.984           Malpractice Relief During Time of Covid Emergency

The Medical Society of the State of New York will continue to advocate to ensure the broadest possible interpretation of the medical liability immunity provisions enacted during the Fiscal Year 2020-21 State Budget for health care delivered during the Covid-19 pandemic. The Medical Society of the State of New York will continue to advocate that medical liability insurers provide physicians with appropriate premium discounts, rebates, etc. to account for the significant drop in patient care services during the pendency of the Covid-19 epidemic. (Amended and adopted Council 6/4/20, HOD 2020-Late G) 

190.985           Independent Review of Malpractice Insurance Rates

The Medical Society of the State of New York will continue to support legislation that establishes the authority of the Superintendent of the Department of Financial Services to approve the premiums for medical liability insurance, recognizing the continued actuarial need for specialty and regional differences in such rates. (HOD 2019-55) 

190.986               Changing MSSNY Goals on Medical Liability

The Medical Society of the State of New York will work to lower medical liability premiums. (HOD 2017-65)

190.987       Medical Liability Coverage through the Federal Tort Claims Act

MSSNY will once again seek legislation that would lead to malpractice insurance coverage through the Federal Tort Claims Act for all physicians who participate in Medicare and/or Medicaid and all Federal Insurance plans. This resolution will be also forwarded to the AMA Annual meeting in June 2017. (HOD 2017-107)

190.988               Medical Malpractice Reform to Medical Injury Compensation (No-Fault)

MSSNY will continue to examine the feasibility of a No-Fault system for adjudicating medical liability claims and support such a proposal if there is demonstrable evidence that it would significantly reduce the cost of medical liability insurance coverage. (HOD 2016-62; substitute resolution adopted Council Nov 3, 2016)

190.989              Clinical Practice Guidelines as Safe Harbors

The Medical Society of the State of New York will seek legislation to create a demonstration project which establishes use of evidence-based clinical guidelines developed by the appropriate specialty medical society as a safe harbor in any subsequent medical liability litigation which may arise. HOD 2016-116)

190.990              NYS Medical Malpractice Insurance Market Undergoing Upheaval

The Medical Society of the State of New York will actively monitor and regularly communicate with the Department of Financial Services to ascertain the financial status of the various medical malpractice insurance companies operating in New York State; and it will continue to regularly update its members regarding the financial status of these insurers as well as the benefits of obtaining medical liability insurance coverage from a licensed New York insurer, including information regarding coverage for claims from the existing State guarantee fund in the event that a medical liability insurer becomes insolvent. (HOD 2016-69)

190.991               Restoring Liability Limits

The Medical Society of the State of New York will seek legislation to restore limits on physician liability to those individuals with whom there is an established physician-patient relationship; and in conjunction with its General Counsel continue to educate physicians regarding the consequences of the Davis v. South Nassau case which extends to third parties with no patient-physician relationship the right to sue such physician. (HOD 2016-63)

190.992                Medical Liability Insurance Education for Employed Physicians

The Medical Society of the State of New York working with MLMIC will facilitate the development of voluntary learning materials which will educate physicians regarding medical liability coverage needs associated with practicing medicine in New York State. (HOD 2014-50)

190.993           Lawsuit Against Expert Witness:

MSSNY will inform its membership of developments regarding legal actions brought by physicians against expert witnesses who have provided scientifically unsupportable testimony.  (HOD 2010-70; Reaffirmed HOD 2020)

190.994                 Expert Witness Testimony in Medical Liability Cases:

MSSNY will develop educational resources which will assist physicians and specialty societies in learning about and recognizing the potential professional misconduct ramifications in providing inaccurate, scientifically unsupportable testimony while acting in the capacity of an expert witness in medical liability cases; and that MSSNY seek legislation to create a new category of professional misconduct for physicians who provide scientifically unsupportable expert witness testimony. (HOD 2006-58; Reaffirmed HOD 2016)

190.995                 Certifying Doctors for Malpractice Lawsuits:

MSSNY adopts as policy that a physician who provides certification to a malpractice lawsuit in a certificate of merit should be board certified in the same specialty in the field called into question and licensed to practice in New York State; that a physician who provides certification to a malpractice lawsuit be required to sign a formal certification statement, and that their identity and credentials be clearly noted on this statement; and that these certifying statements be provided to the Court and to the physician who is sued so they can be verified. (HOD 2005-95; Reaffirmed HOD 2015; Reaffirmed HOD 2025)

190.996                Amendments to the “Certificate of Merit” in Medical Liability Cases:

MSSNY will seek legislation which would provide that physicians who provide consultation to attorneys for purposes of executing the certificate of merit required in medical malpractice actions (CPLR, Section 3012-a) and who routinely, arbitrarily and falsely assert that a basis for such medical malpractice actions exist, shall be guilty of unprofessional conduct and shall be subject to all appropriate disciplinary penalties pursuant to the Public Health Law. (HOD 1999-86; Reaffirmed HOD 2014; Reaffirmed HOD 2024)

190.997               Expert Witness Disclosure:

MSSNY supports legislation which would require the disclosure and pre-trial deposition of expert witnesses in medical liability cases. (HOD 1998-85; Reaffirmed HOD 2014; Reaffirmed HOD 2024)

190.998               Certificate of Merit in Liability Cases:

It is MSSNY’s position that (a) a plaintiff’s attorney, when initiating a medial liability action, certify that he or she has consulted with a physician licensed to practice in New York State who has reviewed the relevant medical records, and that said physician is of the opinion that there were departures from good medical practice that caused injury to the patient; (b) that it is solely the responsibility of the plaintiff’s attorney to select the physician consultant commensurate with the above requirements; and (c) that the name of the consulting physician be made available. (HOD 1998-73; Reaffirmed HOD 2014; Reaffirmed HOD 2024)

190.999                   Reinstatement of Panel System:

MSSNY will seek the reinstatement of the medical malpractice panel system which was eliminated in the 1991 legislative session. (1992 State Legislation Program; Reaffirmed HOD 2014; Reaffirmed HOD 2024)