N.Y. Comp. Codes R. & Regs. tit. 10 § 1000.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 1000.3 - Malpractice awards, judgments and settlements

(a) Collection. The department shall collect and physicians shall submit, if applicable, the following information regarding all medical malpractice court judgments, arbitration awards and malpractice settlements within the most recent 10 years in which a payment has been awarded or made to a complaining party:

(1) date of each award, judgment or settlement, determined as follows:

(i) for arbitration awards, the date the arbitrator issued the award;

(ii) for judgments, the date of entry of the judgment; and

(iii) for settlements, the date of entry of the stipulation or, if no entry, the last date on which any person signed the settlement document;

(2) date payment was made or date claim was closed. The date a claim was closed is the date entered by an insurance company or third party reporter that the claim is resolved;

(3) amount of each award, judgment or settlement;

(4) place(s) of each award, judgment or settlement as specified by the department in accordance with section 1000.1(f) of this Part; and

(5) any other information deemed necessary by the department to implement the provisions of this subdivision.

(b) Public dissemination.

(1) The department shall make available to the public information collected in accordance with subdivision (a) of this section regarding:

(i) all medical malpractice court judgments and arbitration awards within the most recent 10 years in which a payment has been awarded or made to a complaining party; and

(ii) malpractice settlements which exceed two in number within the most recent 10 years in which a payment has been awarded or made to a complaining party.

(2) In the case where the total number of malpractice settlements is two or fewer, the department shall make available to the public information collected in accordance with subdivision (a) of this section in those cases where it is alleged that a malpractice event resulted in death or permanent injury, and where the department has considered any information submitted in accordance with subparagraph (ii) of this paragraph.

(i) Permanent injury shall include, but not be limited to, the following:

(a) loss of finger or fingers;

(b) loss or permanent damage to organ or organs;

(c) deafness;

(d) loss of any limb or limbs;

(e) loss of eyes or eyesight;

(f) loss of kidney or kidneys;

(g) loss of lung or lungs;

(h) paraplegia;

(i) brain damage;

(j) quadriplegia;

(k) severe brain damage;

(l) lifelong care;

(m) fatal prognosis;

(n) any permanent loss or impairment (unable to function at same level prior to occurrence) of body part;

(o) any permanent loss or impairment of bodily function;

(p) any permanent physical or mental impairment that substantially limits one or more of the major life activities of an individual; or

(q) death.

For purposes of this subparagraph, the Department of Health may use information collected in accordance with section 315 of the Insurance Law, including information relating to death or the seriousness of injury, or self-reported by physicians as required by subdivision (3) of section 2995-a of the Public Health Law.

(ii)

(a) A physician may provide additional factual clinical information pertinent to the department's determination of whether settlement information is relevant to patient decisionmaking. Such information, if provided, will be reviewed by a panel appointed by the department to conduct such reviews. The panel is comprised of at least three persons, the majority of whom are physicians, at least one of whom is a physician of the same specialty as the physician whose settlement is under review. The panel shall submit its recommendation to the Commissioner of Health regarding whether, based upon the information provided by the physician whose settlement is under review, the settlement is relevant to patient decisionmaking. The recommendation of the panel that a settlement is not relevant for patient decisionmaking shall be predicated upon a preponderance of clinical information indicating that, despite the awarding of a payment to a complaining party, appropriate provision of patient care was provided.

(b) Additional clinical information provided by a physician must be received by the department postmarked within 30 days of the date of the letter transmitting the physician's medical malpractice review copy as specified in section 1000.4(c) of this Part. Requests for an extension of the 30-day period will be considered only if they:

(1) are in writing and received by the department or its agent within the 30- day period or received orally by the department or its agent within the 30-day period followed by a written request for the extension postmarked within five days of the department receiving the oral request or the expiration of the 30- day period, whichever is later;

(2) include the reason(s) why the extension is needed, which must be related to circumstances that are beyond the physician's control; and

(3) indicate the amount of additional time needed.

This clause does not obligate the department to grant extensions. Further, the department may deny any request received beyond the required time frames or missing information required by subclauses (1)-(3) of this clause. Public dissemination of medical malpractice settlement information will be suspended while the department is reviewing the request for an extension. The department will notify the physician in writing of its decision to either grant or deny an extension.

(iii) Consumers shall be advised by the department on a physician profile to contact the physician for more information regarding malpractice awards, judgments and settlements in order to facilitate patient decisionmaking concerning health care quality.

(3) Public dissemination of information regarding medical malpractice judgments, arbitration awards, and settlements under this section shall be made in graduated categories indicating whether the payment award is average, above average or below average, as set forth in subparagraph (i) of this paragraph, in comparison to other payment awards made to complaining parties within the same specialty. For purposes of this paragraph, specialty shall mean a specified area of medical practice including, but not limited to, anesthesiology, family practice, internal medicine, obstetrics and gynecology, pediatrics, physical medicine and rehabilitation, psychiatry, radiology and general surgery. For purposes of comparing payment awards, the department may calculate average, above average and below average amounts, and periodically update them, at least annually, based upon the most recent malpractice payment award information submitted to the department by medical malpractice insurance companies or hospitals self-insured for professional medical malpractice in accordance with section 315 of the Insurance Law, consistent with geographic areas of the State used by the Insurance Department to establish medical malpractice insurance premiums, as set forth in subparagraph (ii) of this paragraph. Average, above average, and below average amounts are based upon quartiles. Quartiles are developed by taking all claims for doctors within a certain specialty in a certain geographic region and dividing them, lowest to highest, into four groups (quartiles) of equal numbers.

(i)

(a) An average payment award means a payment award amount falling in the middle two quartiles of payment award amounts for a certain specialty in a certain geographic region.

(b) A below average payment award means a payment award amount falling in the lowest quartile of payment award amounts for a certain specialty in a certain geographic region.

(c) An above average payment award means a payment award amount in the highest quartile of payment award amounts for a certain specialty in a certain geographic region.

(ii)

(a) If there are at least eight claims in each of four regions, quartiles will be developed for each of four regions for a particular specialty as follows:

Region A = New York, Orange, Rockland, Sullivan, Westchester, Bronx, Kings, Queens, Richmond, Nassau and Suffolk Counties

Region B = Columbia, Dutchess, Greene, Putnam and Ulster Counties

Region C = Erie and Niagara Counties

Region D = All Other Counties

(b) If there are an insufficient number of claims to develop quartiles for each of four regions as specified in clause (a) of this subparagraph, then quartiles will be developed for each of two regions for a specialty if there are at least eight claims in each of two regions as follows:

Downstate = Region A

Upstate = Combined Regions B, C, and D

(c) If there is an insufficient number of claims to develop quartiles for downstate and upstate, quartiles will be developed on a statewide basis for a specialty.

N.Y. Comp. Codes R. & Regs. Tit. 10 § 1000.3