A01056 Summary:

BILL NO    A01056 

SAME AS    SAME AS S00744

SPONSOR    Weinstein (MS)

COSPNSR    Gottfried, Hooper, Paulin, Perry, Jaffee, Weprin, Goldfeder, Markey,
           Titone, Mosley, Moya, Brindisi, Stirpe, Rosenthal, Borelli,
           Benedetto, Steck, Lifton, Clark, Thiele, Abinanti

MLTSPNSR   Braunstein, Buchwald, Cymbrowitz, Englebright, Jacobs, Millman, Ra,
           Raia, Sepulveda, Titus, Weisenberg, Wright

Amd S214-a, CPLR

Alters the statute of limitations for medical, dental or podiatric malpractice
to two years and six months from the time when a person knows or reasonably
should have known of the alleged negligent act or omission and knows or
reasonably should have known that such negligent act or omission has caused an
injury.
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A01056 Memo:

BILL NUMBER:A1056

TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the limitations of time within which an action for
medical, dental or podiatric malpractice accrues.

PURPOSE OF BILL:  To amend the statute of limitations for medical,
dental or podiatric malpractice to include a discovery of injury rule.

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
statute 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 different 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
hepatitis-C or HIV by an inadequately sterilized, re-used, or
otherwise "dirty" syringe. The infected patient may in fact be totally
asymptomatic 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
negligent 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:

2011-12: A.4852/S.5242 - A. Codes/ S. Judi

2010: A.4627-B/S.1729-A - A. Codes/S. Codes

2009: A.4627-A/S.1729 - A. Rules/S. Rules

2008: A.6416 - A. Rules

2007: A.6416 - Rules Report
732

2005: A.5946/S.962 - A. Codes/S. Codes

2003-04: A.6544/S.2588 A. Codes/S. Codes

2002: A.7793/S.7454 - A. Codes/ S. Rules

2001: A.7793 - A. Codes 2000: A.6559-A - A. Codes

1999: A.6559-A - Assembly Calendar

1998: A.5344 - A. Rules

1997: A.5344 A. Codes

1995-96: A.6041 - A. Codes

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:  Undetermined.

EFFECTIVE DATE: Immediately.
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A01056 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         1056

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                      (PREFILED)

                                    January 9, 2013
                                      ___________

       Introduced  by  M.  of  A.  WEINSTEIN, GOTTFRIED, HOOPER, PAULIN, PERRY,
         JAFFEE,  WEPRIN,  GOLDFEDER,  STEVENSON,  MARKEY,  CASTRO,  TITONE  --
         Multi-Sponsored by -- M. of A.  BRAUNSTEIN, JACOBS, MILLMAN, RA, RAIA,
         WEISENBERG, WRIGHT -- read once and referred to the Committee on Codes

       AN  ACT  to  amend  the civil practice law and rules, in relation to the
         limitations of time within which an  action  for  medical,  dental  or
         podiatric malpractice accrues

         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section 1. Section 214-a of the  civil  practice  law  and  rules,  as
    2  amended  by  chapter  485  of  the  laws  of 1986, is amended to read as
    3  follows:
    4    S 214-a. Action for medical, dental or  podiatric  malpractice  to  be
    5  commenced  within  two  years and six months; exceptions.  An action for
    6  medical, dental or podiatric malpractice must be  commenced  within  two
    7  years  and  six months of the [act, omission or failure complained of or
    8  last treatment where there is continuous treatment for the same illness,
    9  injury or condition which gave rise to the said act, omission  or  fail-
   10  ure;  provided, however, that where the action is based upon the discov-
   11  ery of a foreign object in the body of the patient, the  action  may  be
   12  commenced  within  one year of the date of such discovery or of the date
   13  of discovery of facts which would reasonably  lead  to  such  discovery,
   14  whichever is earlier.  For the purpose of this section the term "contin-
   15  uous treatment" shall not include examinations undertaken at the request
   16  of  the  patient  for  the sole purpose of ascertaining the state of the
   17  patient's condition.  For the purpose of this section the term  "foreign
   18  object"  shall not include a chemical compound, fixation device or pros-
   19  thetic aid or device] ACCRUAL OF ANY SUCH ACTION. FOR PURPOSES  OF  THIS
   20  SECTION, THE ACCRUAL OF AN ACTION OCCURS AT THE LATER OF EITHER (A) WHEN
   21  ONE  KNOWS  OR REASONABLY SHOULD HAVE KNOWN OF THE ALLEGED NEGLIGENT ACT

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD01405-01-3
       A. 1056                             2

    1  OR OMISSION AND KNOWS OR REASONABLY SHOULD HAVE KNOWN THAT  SAID  NEGLI-
    2  GENT  ACT  HAS CAUSED AN INJURY; OR, (B) WITHIN TWO YEARS AND SIX MONTHS
    3  OF THE LAST TREATMENT WHERE THERE IS CONTINUOUS TREATMENT FOR  THE  SAME
    4  ILLNESS,  INJURY  OR  CONDITION  WHICH  GAVE  RISE  TO THE ACCRUAL OF AN
    5  ACTION.
    6    S 2. This act shall take effect immediately.
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