2023 New York Laws › CVP - Civil Practice Law and Rules › Article 30 - Remedies and Pleading › 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.