Plaintiff commenced this medical malpractice action in 1987 against, among others, defendants Amsterdam Memorial Hospital and Roger Miller (hereinafter collectively referred to as defendants). Following joinder of issue, defendants moved to dismiss the complaint principally due to plaintiff’s failure to comply with CPLR 3012-a, which requires a complaint in a medical malpractice suit to be accompanied by a certificate of merit. Supreme Court only conditionally granted defendants’ motions. To avoid dismissal, the court ordered plaintiff to, within 30 days of its order, file a certificate of merit and pay each defendant $250. Plaintiff appealed that decision and this court affirmed (
There must be an affirmance. Initially, we reject plaintiff’s contention that CPLR 3012-a violates the Equal Protection Clauses of both the Federal and State Constitutions (US Const 14th Amend; NY Const, art I, § 11). Plaintiff claims that the statute is discriminatory because it affords protection only to certain health care providers while others who are sued for malpractice, such as attorneys or accountants, are denied similar protection (as are certain other health care providers such as osteopaths and chiropractors). In reviewing plaintiff’s claims it must first be noted that those in plaintiff’s position do not constitute a suspect class, nor do the requirements of CPLR 3012-a interfere with the exercise of a fundamental right; therefore, the statute should not be subjected to strict scrutiny but rather a rational basis standard of judicial review
While a lack of a certificate of merit essentially operates to deny a plaintiff access to the courts, such access regarding claims not involving rights subject to special constitutional protection may be denied if there is a rational basis (see, Montgomery v Daniels, supra, at 60; see also, Ortwein v Schwab,
Here it is apparent that despite plaintiff’s contentions otherwise, the State’s purported objective in enacting CPLR 3012-a was perfectly legitimate insofar as it involved the health, comfort, safety and welfare of society (see, Montgomery v Daniels, supra, at 61). Specifically, CPLR 3012-a was added to the CPLR in 1986 as part of a package of amendments designed to address some of the problems faced by the health care industry due to high medical malpractice insurance premiums which discourage physicians and dentists from practicing in New York (L 1986, ch 266, § 1; see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3012-a, 1989 Pocket Part, at 252).
As for the fact that only physicians, dentists and, most recently, podiatrists come within the statute’s purview at present, we note that there was a rational basis for these distinctions based upon the belief that these were the professions most affected and threatened by increasing medical malpractice insurance premiums (see, Trump v Chu, 65 NY2d
As for plaintiff’s due process claim, he basically argues that he is being denied access to the courts because the certificate requirement interferes with discretion in deciding to sue because an attorney must first find a physician who agrees that the case has merit. This argument is specious. Under due process, for access to the courts to be recognized it must be in conjunction with a right recognized as entitled to special protection. Otherwise the State may condition access to the courts (see, Matter of Colton v Riccobono,
Order affirmed, with one bill of costs. Weiss, J. P., Mikoll, Yesawich, Jr., Mercure and Harvey, JJ., concur.
Notes
Originally, the statute included only physicians and dentists. In 1987, podiatrists were added to the list (L 1987, ch 507).