NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1056A
SPONSOR: Weinstein (MS) TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to accrual of certain causes of action
PURPOSE OF BILL:
To amend the statute of limitations for medical, dental or podiatric
malpractice to include a discovery of injury rule, allowing the current
two and half year statute of limitations to run from the date an injured
patient discovers, or should have discovered, that their injury was
caused by malpractice. However, in no event shall a malpractice action
be filed more than ten years after the date of the alleged malpractice.
SUMMARY OF PROVISIONS OF BILL:
Amends Section 214-a of the Civil Practice Law and Rules to accomplish
the above purpose.
JUSTIFICATION:
New York's current statute of limitations as to medical malpractice is
two and one half years from the date of the act, omission or failure
complained of or last treatment where there is continuous treatment. It
is not only the shortest negligence statute in the State of New York,
except for claims against municipalities, but works undue hardship in
its application and interpretation.
The courts in this State have consistently interpreted the accrual of a
cause of action for negligence as occurring at the time the act
complained of occurred. In medical malpractice cases, arising out of a
misdiagnosis or the failure to diagnose, the injury suffered by the
victim of such a tort is often discovered until the well after the stat-
ute of limitation has expired.
This injustice is sometimes seen when a patient discovers the growth of
a cancerous tumor. For example, a patient is seen by a physician for
rather general complaints and a series of tests are ordered, including
an x-ray. The patient is diagnosed as having no illness. Several years
later the patient is diagnosed as having a spot on the lung by a differ-
ent physician. Review of the original x-ray films show the presence of a
spot on the earlier film. Time is of the essence in the treatment of
cancer if one is to get a favorable chance at long term survival. If
more than two and one half years have passed from the date of the
original x-ray (assuming no continuous course of treatment), the
patient's claim is time barred, despite the fact that the patient could
not have reasonably known of the existence of the medical misconduct.
Another example of this type of injustice occurs when a patient has been
exposed to inadequate hygienic conditions, i.e. is infected with hepati-
tis-C or HIV by an inadequately sterilized, re-used, or otherwise
"dirty" syringe. The infected patient may in fact be totally asymptomat-
ic for years after the two and one half year statute of limitations has
expired. However, if symptoms (and hence discovery of the medical
misconduct) become apparent only after the expiration of the statute,
the patient nevertheless has no legal recourse.
The current statute of limitations is based upon an archaic rule that a
cause of action sounding in negligence accrues at the time of the negli-
gent act. The better rule and the one most widely adopted in other
jurisdictions, such as New Jersey, North Carolina, and claims against
the United States of America arising under the Federal Tort Claims Act,
is one which recognizes that some injuries do not manifest themselves
at the time of the negligent act, and which permits a victim of medical
malpractice to discover his or her injury before their statutory period
to begin suit runs. New York has dealt with this problem in the field of
Toxic Torts. In 1986 the Legislature enacted CPLR Section 214-c. That
section set forth a discovery rule for injuries suffered as-a result of
exposure and implantation (1992 amendment) of foreign substances'. The
justification for the passage of 214-c was that individuals who were
exposed to toxic substances did not show any adverse health effects
until after the three (3) year general negligence statute of limitations
had run. The issue was revisited in 1992 when that act was amended to
include implantation within "exposure" to remedy an injustice to victims
of breast implants.
This bill would remove this gaping loophole in the law, which allows a
patient's rights to expire prior to the patient even knowing that she
had any rights in the first place. The bill would certainly not mandate
that any claim be deemed meritorious - instead, the bill would merely
prevent the statute of limitations from being used as an unfair and
inequitable shield front professionally negligent medical misconduct.
LEGISLATIVE HISTORY:
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
Undetermined.
EFFECTIVE DATE:
Immediately.
STATE OF NEW YORK
________________________________________________________________________
1056--A
Cal. No. 552
2013-2014 Regular Sessions
IN ASSEMBLY(Prefiled)
January 9, 2013
___________
Introduced by M. of A. WEINSTEIN, GOTTFRIED, HOOPER, PAULIN, PERRY,
JAFFEE, WEPRIN, GOLDFEDER, MARKEY, TITONE, MOSLEY, MOYA, BRINDISI,
STIRPE, ROSENTHAL, BORELLI, BENEDETTO, STECK, LIFTON, CLARK, THIELE,
ABINANTI -- Multi-Sponsored by -- M. of A. BRAUNSTEIN, BUCHWALD,
CYMBROWITZ, ENGLEBRIGHT, JACOBS, MILLMAN, RA, RAIA, SEPULVEDA, TITUS,
WEISENBERG, WRIGHT -- read once and referred to the Committee on Codes
-- reported from committee, advanced to a third reading, amended and
ordered reprinted, retaining its place on the order of third reading
AN ACT to amend the civil practice law and rules, in relation to accrual
of certain causes of action
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph of subdivision (g) of section 203 of
2 the civil practice law and rules is designated paragraph 1 and a new
3 paragraph 2 is added to read as follows:
4 2. Notwithstanding any other provision of law to the contrary, for the
5 purposes of sections fifty-e and fifty-i of the general municipal law,
6 section ten of the court of claims act, and the provisions of any other
7 law pertaining to the commencement of an action or special proceeding,
8 or to the filing of a notice of claim as a condition precedent to
9 commencement of an action or special proceeding within a specified time
10 period, the period in which to commence such action or proceeding or to
11 file such notice of claim shall not being to run until the later of
12 either: (a) when one knows or reasonably should have known of the
13 alleged negligent act or omission and knows or reasonably should have
14 known that such negligent act or omission has caused an injury; or (b)
15 the date of the last treatment where there is continuous treatment for
16 the same illness, injury or condition which have rise to the accrual of
17 an action. However, such action shall commence no later than ten years
18 from the act, omission or failure complained of or last treatment where
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01405-08-4
A. 1056--A 2
1 there is continuous treatment for the same illness, injury or condition
2 which gave rise to the act, omission or failure; provided, however, that
3 where the action is based upon the discovery of a foreign object in the
4 body of a patient, the action may be commenced within one year of the
5 date of such discovery or of the date of discovery of facts which would
6 reasonably lead to such discovery, whichever is earlier.
7 § 2. Section 214-a of the civil practice law and rules, as amended by
8 chapter 485 of the laws of 1986, is amended to read as follows:
9 § 214-a. Action for medical, dental or podiatric malpractice to be
10 commenced within two years and six months; exceptions. An action for
11 medical, dental or podiatric malpractice must be commenced within two
12 years and six months of the accrual of any such action. The accrual of
13 an action occurs at the later of either (a) when one knows or reasonably
14 should have known of the alleged negligent act or omission and knows or
15 reasonably should have known that such negligent act or omission has
16 caused an injury; or (b) within two years and six months of the last
17 treatment where there is continuous treatment for the same illness,
18 injury or condition which gave rise to the accrual of an action. Howev-
19 er, such action shall commence no later than ten years from the act,
20 omission or failure complained of or last treatment where there is
21 continuous treatment for the same illness, injury or condition which
22 gave rise to the said act, omission or failure; provided, however, that
23 where the action is based upon the discovery of a foreign object in the
24 body of the patient, the action may be commenced within one year of the
25 date of such discovery or of the date of discovery of facts which would
26 reasonably lead to such discovery, whichever is earlier. For the purpose
27 of this section the term "continuous treatment" shall not include exam-
28 inations undertaken at the request of the patient for the sole purpose
29 of ascertaining the state of the patient's condition. For the purpose of
30 this section the term "foreign object" shall not include a chemical
31 compound, fixation device or prosthetic aid or device.
32 § 3. This act shall take effect immediately.
