New York Civil Practice
Law & Rules

NYCPLR Article 75-A

HEALTH CARE ARBITRATION

  
         7550. Definitions.
        7551. Applicability.
        7552. Health care arbitration proceedings.
        7553. Costs of the proceeding.
        7554. Selection of arbitrators.
        7555. Screening for bias; communication with arbitrator
                candidates.
        7556. Demand for arbitration; minors; consolidation of
                proceedings.
        7557. Reparation offers; denials of liability.
        7558. Depositions and discovery; rules of the arbitration
                administrator; adjournments.
        7559. Hearing; evidence; record; neutral experts.
        7560. Subpoenas.
        7561. Use of depositions; enforcement of discovery procedures.
        7562. Witnesses` fees and mileage; arbitrators` fees and
                expenses.
        7563. Briefs; award; decision.
        7564. Form of decision; costs upon frivolous claims and
                counterclaims.
        7565. Modification and judicial review of decision.

  S 7550. Definitions. As used in this article:
  (a) "Arbitration administrator" means an entity designated by the
superintendent of insurance to administer the arbitration of disputes
pursuant to this article.
  (b) "Hospital" has the same meaning as is set forth in subdivision ten
of section twenty-eight hundred one of the public health law.
  (c) "Health maintenance organization" has the same meaning as is set
forth in subdivision one of section forty-four hundred one of the public
health law and shall include health maintenance organizations authorized
pursuant to article forty-three of the insurance law.
  (d) "Health care provider" includes any person or entity employed or
otherwise involved in the provision of health care or treatment.

  S 7551. Applicability. The provisions of this article shall apply to
all claims for damages because of injury or death resulting from health
care or treatment rendered or failed to be rendered to enrollees and
other covered family members of health maintenance organizations and all
other claims, cross-claims, counter-claims, and claims for contribution
and indemnity arising from claims subject to agreements to arbitrate
made pursuant to section forty-four hundred six-a of the public health
law and to arbitrations authorized pursuant to section thirty hundred
forty-five of this chapter.

  S 7552. Health care arbitration proceedings. (a) Proceedings pursuant
to this article shall be commenced and conducted in accordance with
article seventy-five of this chapter, except as otherwise provided by
this article, and in accordance with rules promulgated by the
arbitration administrator and approved by the superintendent of
insurance.
  (b) The standards of duty, practice, or care to be applied to a
physician, dentist, hospital, health maintenance organization or other
health care provider in the arbitration shall be the same standards as
would be applied in a comparable medical or dental malpractice action.
  (c) Damages shall be determined in accordance with provisions of law
applicable to medical and dental malpractice actions. Attorney
contingency fee agreements shall be valid and subject to provisions of
law applicable to medical and dental malpractice actions.

  S 7553. Costs of the proceeding. The administrative expense of
arbitrations shall be paid from the arbitration administration fund
established pursuant to section five thousand six hundred three of the
insurance law.

  S 7554. Selection of arbitrators. (a) An arbitration under this
article shall be heard by a panel of three arbitrators. The chairperson
of the panel shall be an attorney who shall be appointed to serve in
such capacity on a full-time basis for a fixed term. The chairperson
shall have jurisdiction over prehearing procedures. Qualifications for
the selection of such chairpersons shall be established by the
arbitration administrator, subject to the approval of the superintendent
of insurance.
  (b) Except as otherwise provided in subdivision (e) of this section,
the remaining two arbitrators, hereinafter referred to as associate
arbitrators, shall be selected from a pool of candidates established
pursuant to the rules and procedures promulgated by the arbitration
administrator and approved by the superintendent of insurance. Attorneys
whose practice substantially involves representation in personal injury
matters, physicians, dentists, hospital and health maintenance
organization personnel and other health care providers shall not be
eligible to serve as associate arbitrators. The rules and procedures
pertaining to selection of associate arbitrators under this article
shall provide that the arbitration administrator send simultaneously to
each party an identical list of associate arbitrator candidates,
together with a brief biographical statement on each candidate. A party
may strike from the list any name which is unacceptable and shall number
the remaining names in order of preference. When the lists are returned
to the arbitration administrator they shall be compared and the first
two mutually agreeable associate arbitrator candidates shall be invited
to serve.
  (c) When two mutually agreed upon associate arbitrators have not been
selected from the first list, a second list of such candidates shall be
sent in the manner provided for in subdivision (b) of this section.
  (d) If a complete panel is not selected by mutual agreement of the
parties pursuant to subdivisions (b) and (c) of this section, then,
under applicable rules and procedures of the arbitration administrator,
which are approved by the superintendent of insurance, the arbitration
administrator shall appoint the remaining associate arbitrators. Any
appointment of an associate arbitrator by the arbitration administrator
shall be subject to challenge by any party for cause. To be sufficient,
a challenge must allege facts which establish that community,
professional or other pressures are likely to influence the objectivity
of the appointed associate arbitrator. A decision on a request to strike
an arbitrator for cause shall be made by the arbitration administrator.
  (e) The parties shall not be restricted to the associate arbitrator
candidates submitted for consideration. If all parties mutually agree
upon one or more associate arbitrators, such arbitrators shall be
invited to serve.

  S 7555. Screening for bias; communication with arbitrator candidates.
(a) Prior to inclusion on a list of proposed associate arbitrators, the
arbitration administrator shall make an appropriate initial screening
for bias and shall require associate arbitrator candidates for a
particular case to complete a current personal disclosure statement
under oath. In addition to other relevant information, the statement
shall disclose any personal acquaintance with any of the parties or
their counsel and the nature of such acquaintance. If the statement
reveals facts which suggest the possibility of partiality, the
arbitration administrator shall communicate those facts to the parties.
  (b) No party shall communicate with an associate arbitrator candidate,
directly or indirectly, except through the arbitration administrator, at
any time after the filing of the demand for arbitration. Any candidate
who is aware of such communication shall immediately notify the
arbitration administrator.

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Article 75-A Continued . . .

    S 7556. Demand for arbitration; minors; consolidation of proceedings.
(a) Any person subject to an arbitration agreement may seek to compel
arbitration, pursuant to section seventy-five hundred three or section
thirty hundred forty-five of this chapter.
  (b) Notwithstanding the provisions of section twelve hundred nine of
this chapter, a minor child and a person judicially determined to be
incompetent shall be bound to arbitrate disputes, controversies, or
issues upon the execution of an arbitration election on the person`s
behalf by a parent, legal guardian, committee, conservator or other
person legally authorized to enroll such minor or incompetent person in
a health maintenance organization, in accordance with the provisions of
section forty-five hundred six-a of the public health law.
  (c) Separate arbitration proceedings brought pursuant to this article,
which involve common question of law and fact, shall be consolidated
into a single arbitration proceeding.
  (d) Except for arbitrations commenced pursuant to section thirty
hundred forty-five of this chapter, any case involving a person who is
not bound to participate in the arbitration proceeding pursuant to
subdivision (e) of section forty-four hundred six-a of the public health
law shall not be subject to the arbitration proceeding, unless such
person and all parties who are subject to the arbitration consent to the
arbitration of the claim. Absent such consent, any party may seek to
stay such arbitrations, pursuant to section seventy-five hundred three
of this chapter, notwithstanding any time limits that may otherwise
apply to such a stay, and require the matter to proceed as a civil
action. In the event that such an arbitration is stayed, the arbitration
administrator shall forthwith transfer the case to the clerk of the
court in the venue designated by the plaintiff, where the case shall be
expeditiously reviewed and assigned in accordance with rules promulgated
by the chief administrator of the courts. If the demand for arbitration
was made or a notice of intention to arbitrate was served within the
limitations of time specified by article two of this chapter, and the
arbitration was subsequently stayed and transferred to a court, the
action shall be deemed to have been timely commenced, in accordance with
the provisions of subdivision (a) of section two hundred five of this
chapter.

  S 7557. Reparation offers; denials of liability. All communications
incidental to settlement made orally or in writing by any party shall
not be disclosed to the arbitration panel, unless all parties consent to
such disclosure.

  S 7558. Depositions and discovery; rules of the arbitration
administrator; adjournments. (a) After the appointment of the panel of
arbitrators and notwithstanding inconsistent provisions of sections four
hundred eight and three thousand one hundred two of this chapter, the
parties to the arbitration may take depositions and obtain discovery
regarding the subject matter of the arbitration and, to that end, use
and exercise the same rights, remedies, and obligations in the
arbitration as if the subject matter of the arbitration were pending in
a civil action.
  (b) The arbitration administrator shall promulgate rules, subject to
the approval of the superintendent of insurance, to ensure the
expeditious completion of discovery and the prompt commencement and
conclusion of the hearing, consistent with applicable provisions of rule
thirty-four hundred six of this chapter.
  (c) An adjournment at the request of counsel for any of the parties
may be granted only by the chairperson of the panel for good cause
shown. A proceeding under this article shall be treated in the same
manner as an action or proceeding in supreme court for the purpose of
any claim by counsel of actual engagement.

  S 7559. Hearing; evidence; record; neutral experts. (a) An arbitration
hearing shall be informal and the rules of evidence shall be those
applicable to arbitrations conducted pursuant to article seventy-five of
this chapter.
  (b) Testimony at the hearing shall be taken under oath and a record of
the proceedings shall be made by a recording device. Any party may
obtain a copy of the recording of the proceeding, which shall be
provided without charge. A party, at that party`s expense, may also
utilize the services of a stenographic reporter. The cost of any
transcription ordered by the panel of arbitrators for its own use shall
be deemed part of the cost of the proceedings.
  (c) The panel on its own motion may call a neutral expert witness who
shall be subject to cross-examination by the parties. The cost of the
expert will be deemed a cost of the proceeding.

  S 7560. Subpoenas. The chairperson of the panel and any attorney of
record in the proceeding has the power to issue subpoenas, in accordance
with section seventy-five hundred five of this chapter.

  S 7561. Use of depositions; enforcement of discovery procedures. (a)
On application of a party to the arbitration, the chairperson may permit
the deposition of a witness to be used as evidence, in accordance with
the provisions of rule three thousand one hundred seventeen of this
chapter.
  (b) Depositions shall be taken in the manner prescribed by law for the
taking of depositions in civil actions.
  (c) The chairperson may enforce the failure of parties to comply with
applicable discovery obligations in the same manner as a court, pursuant
to section three thousand one hundred twenty-six of this chapter,
including through the imposition of costs, payable to the arbitration
fund, provided, however, that the chairperson shall not have the power
to find a party in contempt.

  S 7562. Witnesses` fees and mileage; arbitrators` fees and expenses.
(a) Except for the parties to the arbitration and their agents,
officers, and employees, all witnesses appearing pursuant to subpoena
are entitled to receive fees and mileage in the same amount and under
the same circumstances as prescribed by law for witnesses in civil
actions. The fee and mileage of a witness subpoenaed upon the
application of a party to the arbitration shall be paid by that party.
The fee and mileage of a witness subpoenaed solely at the request of an
arbitrator shall be deemed to be a cost of the proceeding.
  (b) Each arbitrator`s salary or fees and expenses, together with any
other costs of the proceeding shall be paid from the arbitration
administration fund established pursuant to section five thousand six
hundred three of the insurance law. The range of such salary or fees and
expenses and the manner of their payment shall be established by
regulation of the superintendent of insurance.

  S 7563. Briefs; award; decision. (a) The panel may order that written
briefs be submitted within thirty days after the close of hearings. In
written briefs each party may summarize the evidence and testimony and
may propose a comprehensive award of compensatory elements.
  (b) The panel of arbitrators shall render its decision by majority
vote and the decision shall be rendered within thirty days after the
close of the hearing or the receipt of briefs, if briefs are requested.

  S 7564. Form of decision; costs upon frivolous claims and
counterclaims. (a) The decision in the arbitration proceeding shall be
in the form required by sections seven thousand five hundred seven and
four thousand two hundred thirteen of this chapter and shall be filed
with the arbitration administrator.
  (b) The panel of arbitrators shall be empowered to award costs and
reasonable attorney`s fees to a successful party in an arbitration, if
the panel finds that the action, claim, counterclaim, defense or cross
claim of an unsuccessful party is frivolous, in accordance with the
provisions and subject to the limitations of section eight thousand
three hundred three-a of this chapter. The arbitration fee paid by the
claimant shall be recoverable by the claimant in the event an award is
made to the claimant.

  S 7565. Modification and judicial review of decision. A decision of a
panel of arbitrators shall be binding on all parties, unless modified or
vacated pursuant to section seven thousand five hundred nine or seven
thousand five hundred eleven of this chapter.