A01124 Summary:

BILL NO    A01124 

SAME AS    SAME AS S01209

SPONSOR    Titus (MS)

COSPNSR    

MLTSPNSR   Robinson

Amd S214-a, CPLR; amd S2805-l, add SS2827 & 2828, Pub Health L

Relates to the time to commence certain medical malpractice actions; provides
that actions related to acts or omissions of hospitals where an incident report
is required to be filed may be filed within one year of the required filing.
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A01124 Actions:

BILL NO    A01124 

01/08/2015 referred to codes
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A01124 Votes:

There are no votes for this bill in this legislative session.
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A01124 Memo:

BILL NUMBER:A1124

TITLE OF BILL:  An act to amend the civil practice law and rules and
the public health law, in relation to the time to commence certain
malpractice actions

PURPOSE OR GENERAL IDEA OF BILL:  This bill would provide extend the
statute of limitations in medical, dental or podiatric malpractice
actions against a hospital where the hospital has violated section
2805-1 of the public health law by failing to file an incident report
as mandated by that section. it also requires such reports to be sent
to the patient and their representative. Finally, the bill provides
for a private right of action against a hospital for injuries suffered
as a result of a hospital acquired infection; and establishes strict
liability against hospitals for medication errors.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 -tolls the statute of limitations in a medical, dental or
podiatric malpractice action so that where there is a failure by a
hospital to file an incident report as mandated, by the public health
law, a plaintiff has a year from the date of filing of such report:in
which to commence an action.

In addition, it tolls the statute limitations in a medical, dental or
podiatric malpractice action so that where an action is time-barred
against an individual healthcare service provider, an action may still
be commenced against a hospital where either the individual or the
hospital has failed to file an incident report as mandated by the
public health law, a plaintiff has a year from the date of filing of
such report in which to commence an action.

Section 2 - requires incident!reports submitted to the Department of
Health under section 2805-1 of the public health law also be sent to
the patient and their representative.

Section 3 - provides for a private right of action as a result of
injury from a hospital acquired infection.

Section 4 - provides for strict, liability against hospitals for
medication errors.

Section 5 - Effective Date.

JUSTIFICATION:  Despite having been a requirement for over twenty
years, there are abundant reports of hospitals failing to file
incident reports as mandated by the public health law. These incident
reports are required in order to give the Department of Health notice
that a significant incident has occurred, such as a patient death
under circumstances other than as a result of the course of disease,
injury or proper treatment. It also includes situations that harmed
patients, such as fires, equipment malfunctions, or poisonings.
According to a Harvard study, over 7,000 New Yorkers die each year as
a result of Preventable medical errors: Clearly, these reports are a
significant tool that should be used to prevent the recurrence of harm
or death to patients.  Yet by failing to timely file such reports,:
hospitals are preventing the Department of Health from asserting its


authority to make sure the public is adequately protected in the case
of substandard patient care of hospital environment. Furthermore, the
law fails to permit notification to those most directly affected by
such unfortunate events-the patient themselves, as well as family or
others who are designated to help make crucial decisions for the
patient. By tolling the statute of limitations on malpractice actions
against hospitals, such institutions are incentivized to obey the
clear letter of the law, Furthermore, hospitals will not be able to,
protect themselves from liability for their harmful actions simply' by
ignoring the law, and thereby further harming the patient in
question-first by whatever action led to the requirement of filing the
incident report, then again by not filing the report, thus preventing
the patient or their representative from accessing information that
could, help them recover damages for their death.or injury.

With respect to hospital acquired infections, it is widely reported
that such infections are commonplace and have hugely inflated the
number of injuries and death that would otherwise be preventable but
for lack of adherence to modern sanitation standards. Indeed,
according to a report by the Committee to Reduce Infection. Deaths,
"infections contracted in hospitals are the fourth largest killer in
America." Despite regulatory and self-policing efforts to overcome
this frightening and unnecessary phenomenon, patient still suffer
needlessly as a result of such infections.

As with many other public safety issues over the years, one method of
assuring that the self interest of the erstwhile wrongdoer is aligned
with that of the victim, thus changing their behavior for the public
good, is permitting those harmed by the improper behavior to bring
suit for damages. By permitting patients to bring:action against
hospitals for hospital acquired infections, hospitals will be forced
to review their sanitary procedures and provide a safer patient
environment.

Finally, the matter of medication errors is addressed in the bill as
well. Similar to that of hospital-acquired infections, there is no
good reason for so many people to be harmed for such mistakes in this
day of modern technology and advanced therapeutic practices available
to prevent careless mistakes. As with the problem of infections, by
making hospitals strictly liable for harms that are the result of
preventable error, such institutions will modify their practices that
reduce medication errors and substantially enhance patient safety.

PRIOR LEGISLATIVE HISTORY:  A1926A (2013-2014) Amended & Recommitted
to Codes 2/06/14 A3913A (2011-2012) Amended & Recommitted to Codes
1/13/12 A10592 (2009-2010) Referred to Judiciary 4/8/10

FISCAL IMPLICATIONS:  None.

EFFECTIVE DATE: Immediately.
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A01124 Text:

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

                                         1124

                              2015-2016 Regular Sessions

                                 I N  A S S E M B L Y

                                    January 8, 2015
                                      ___________

       Introduced  by M. of A. TITUS -- Multi-Sponsored by -- M. of A. ROBINSON
         -- read once and referred to the Committee on Codes

       AN ACT to amend the civil practice law and rules and the  public  health
         law, in relation to the time to commence certain malpractice actions

         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.  (A) An action
    6  for medical, dental or podiatric malpractice must  be  commenced  within
    7  two  years  and six months of the act, omission or failure complained of
    8  or last treatment where there  is  continuous  treatment  for  the  same
    9  illness,  injury  or condition which gave rise to the said act, omission
   10  or failure[; provided, however, that where].
   11    (B) (1) NOTWITHSTANDING SUBDIVISION (A) OF THIS SECTION, AN ACTION FOR
   12  MEDICAL, DENTAL OR PODIATRIC MALPRACTICE NEED NOT  BE  COMMENCED  WITHIN
   13  TWO  YEARS  AND SIX MONTHS OF THE ACT, OMISSION OR FAILURE COMPLAINED OF
   14  OR LAST TREATMENT WHERE THERE  IS  CONTINUOUS  TREATMENT  FOR  THE  SAME
   15  ILLNESS,  INJURY  OR CONDITION WHICH GAVE RISE TO THE SAID ACT, OMISSION
   16  OR FAILURE, IF THE DEFENDANT IS A HOSPITAL AS DEFINED IN SUBDIVISION TEN
   17  OF SECTION TWENTY-EIGHT HUNDRED ONE OF THE PUBLIC HEALTH  LAW,  AND  HAS
   18  FAILED  TO  FILE  AN INCIDENT REPORT AS REQUIRED BY SECTION TWENTY-EIGHT
   19  HUNDRED FIVE-L OF SUCH LAW IN CONNECTION WITH THE INCIDENT THAT  IS  THE
   20  SUBJECT  OF  THE  MALPRACTICE  ACTION.  IN  SUCH CASE, THE ACTION MAY BE
   21  COMMENCED WITHIN ONE YEAR OF THE DATE OF THE REQUIRED FILING.
   22    (2) NOTWITHSTANDING SUBDIVISION (A) OF THIS  SECTION,  AN  ACTION  FOR
   23  MEDICAL,  DENTAL  OR  PODIATRIC MALPRACTICE NEED NOT BE COMMENCED WITHIN
   24  TWO YEARS AND SIX MONTHS OF THE ACT, OMISSION OR FAILURE  COMPLAINED  OF
   25  OR  LAST  TREATMENT  WHERE  THERE  IS  CONTINUOUS TREATMENT FOR THE SAME

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06584-01-5
       A. 1124                             2

    1  ILLNESS, INJURY OR CONDITION WHICH GAVE RISE TO THE SAID  ACT,  OMISSION
    2  OR FAILURE, WHERE SUCH ACTION IS AGAINST A HOSPITAL AS DEFINED IN SUBDI-
    3  VISION TEN OF SECTION TWENTY-EIGHT HUNDRED ONE OF THE PUBLIC HEALTH LAW,
    4  REGARDLESS OF WHETHER SUCH ACTION IS OTHERWISE BARRED BY SUBDIVISION (A)
    5  OF THIS SECTION AGAINST ANY INDIVIDUAL LICENSED UNDER TITLE EIGHT OF THE
    6  EDUCATION  LAW, WHERE EITHER SUCH INDIVIDUAL OR SUCH HOSPITAL HAS FAILED
    7  TO FILE AN INCIDENT REPORT AS REQUIRED BY SECTION  TWENTY-EIGHT  HUNDRED
    8  FIVE-L  OF THE PUBLIC HEALTH LAW IN CONNECTION WITH THE INCIDENT THAT IS
    9  THE SUBJECT OF THE MALPRACTICE ACTION. IN SUCH CASE, THE ACTION  MAY  BE
   10  COMMENCED WITHIN ONE YEAR OF THE DATE OF THE REQUIRED FILING.
   11    (C)  WHERE  the action is based upon the discovery of a foreign object
   12  in the body of the patient, the action may be commenced within one  year
   13  of the date of such discovery or of the date of discovery of facts which
   14  would  reasonably  lead to such discovery, whichever is earlier. For the
   15  purpose of this  section  the  term  "continuous  treatment"  shall  not
   16  include  examinations  undertaken  at the request of the patient for the
   17  sole purpose of ascertaining the state of the patient's  condition.  For
   18  the  purpose of this section the term "foreign object" shall not include
   19  a chemical compound, fixation device or prosthetic aid or device.
   20    S 2.  Subdivisions 3, 4, 5, 6 and 7 of section 2805-l  of  the  public
   21  health law are renumbered subdivisions 4, 5, 6, 7 and 8 and a new subdi-
   22  vision 3 is added to read as follows:
   23    3.   NOTWITHSTANDING ANY OTHER PROVISION OF LAW, COPIES OF ANY REPORTS
   24  SUBMITTED TO THE DEPARTMENT UNDER THIS SECTION SHALL ALSO SIMULTANEOUSLY
   25  BE SUBMITTED TO:
   26    (A) THE PATIENT OR PATIENTS WHO ARE AFFECTED IN SUCH A  MANNER  AS  TO
   27  TRIGGER  THE  REPORTING  REQUIREMENTS  AS  SET  FORTH  IN PARAGRAPHS (A)
   28  THROUGH (G) OF SUBDIVISION TWO OF THIS SECTION;
   29    (B) IN THE EVENT  THE  PATIENT  IS  DECEASED  OR  INCAPACITATED,  SUCH
   30  REPORTS  SHALL  BE SUBMITTED WITH THE PATIENT'S OR ESTATE'S LEGAL REPRE-
   31  SENTATIVE; AND
   32    (C) THE PERSON, FAMILY OR OTHERWISE, WHO HAS BEEN  IDENTIFIED  IN  THE
   33  HOSPITAL'S RECORDS AS THE PERSON DESIGNATED BY THE PATIENT FOR NOTIFICA-
   34  TION OR CONSULTATION IN THE EVENT OF THE PATIENT'S INCAPACITY OR DEATH.
   35    S  3. The public health law is amended by adding two new sections 2827
   36  and 2828 to read as follows:
   37    S 2827. LIABILITY  OF  HOSPITALS  FOR  INFECTIONS;  PRIVATE  RIGHT  OF
   38  ACTION.  ANY  PERSON,  WHO  IN  THE  COURSE OF A TREATMENT, PROCEDURE OR
   39  DELIVERY OF HEALTH CARE SERVICE, BY ANY HOSPITAL AS DEFINED IN  SUBDIVI-
   40  SION  TEN  OF  SECTION  TWENTY-EIGHT  HUNDRED  ONE  OF  THIS ARTICLE, IS
   41  SUBJECTED TO A HOSPITAL ACQUIRED INFECTION AS DEFINED BY  PARAGRAPH  (A)
   42  OF  SUBDIVISION  ONE  OF  SECTION  TWENTY-EIGHT HUNDRED NINETEEN OF THIS
   43  ARTICLE, MAY BRING A CAUSE OF ACTION FOR  ANY  INJURIES  SUFFERED  AS  A
   44  RESULT  OF  SUCH  INFECTION,  PURSUANT TO THE STATUTE OF LIMITATIONS SET
   45  FORTH IN SECTION TWO HUNDRED FOURTEEN-A OF THE CIVIL  PRACTICE  LAW  AND
   46  RULES.
   47    S  2828.  STRICT  LIABILITY  FOR  MEDICATION  ERRORS; PRIVATE RIGHT OF
   48  ACTION. EVERY HOSPITAL, AS DEFINED IN SUBDIVISION TEN OF  SECTION  TWEN-
   49  TY-EIGHT  HUNDRED  ONE OF THIS ARTICLE, IS STRICTLY LIABLE FOR ANY INJU-
   50  RIES SUFFERED TO ANY PATIENT AS A RESULT OF AN ERROR IN PROVIDING  MEDI-
   51  CATION  TO  SAID  PATIENT  IN  THE  COURSE  OF A TREATMENT, PROCEDURE OR
   52  DELIVERY OF HEALTH CARE SERVICE.
   53    S 4. This act shall take effect immediately.
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