A01056 Summary:

BILL NO    A01056A

SAME AS    SAME AS S07130

SPONSOR    Weinstein (MS)

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

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

Amd SS203 & 214-a, CPLR

Establishes the date for the accrual of certain causes of action based on
negligence.
Go to top

A01056 Memo:

BILL NUMBER:A1056A

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
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:

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

Undetermined.

EFFECTIVE DATE:

Immediately.
Go to top

A01056 Text:

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

                                        1056--A
                                                               Cal. No. 552

                              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, 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    S  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    S 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    S 3. This act shall take effect immediately.
Go to top
Page display time = 0.1148 sec