A00285 Summary:

BILL NOA00285A
 
SAME ASNo Same As
 
SPONSORWeinstein
 
COSPNSRGottfried, Perry, Jaffee, Markey, Titone, Moya, Brindisi, Rosenthal, Benedetto, Steck, Thiele, Abinanti, Paulin, Hooper, Bronson, Weprin, Simanowitz, Miller, Aubry, Lifton, Russell, Walker, Ryan, Dinowitz, Hyndman, Rodriguez, Arroyo, Richardson, Sepulveda, Santabarbara, Hevesi, Seawright
 
MLTSPNSRBraunstein, Buchwald, Castorina, Cymbrowitz, Davila, Kearns, Titus, Wright
 
Amd 203 & 214-a, CPLR
 
Establishes the date for the accrual of certain causes of action based on negligence.
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A00285 Actions:

BILL NOA00285A
 
01/07/2015referred to codes
06/02/2015reported referred to rules
06/08/2015reported
06/08/2015rules report cal.45
06/08/2015ordered to third reading rules cal.45
06/10/2015passed assembly
06/10/2015delivered to senate
06/10/2015REFERRED TO CODES
01/06/2016DIED IN SENATE
01/06/2016RETURNED TO ASSEMBLY
01/06/2016ordered to third reading cal.20
01/25/2016amended on third reading (t) 285a
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A00285 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A285A
 
SPONSOR: Weinstein (MS)
  TITLE OF BILL: An act to amend the civil practice law and rules, in relation to accrual of causes of action for medical, dental and podiatric malpractice   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, reused, 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 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: 2014: A.1056-A/S.7130 - A. Calendar/S. Judi 2013: A.1056-A - A. Calendar 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 - A. 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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A00285 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         285--A
                                                                 Cal. No. 20
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 7, 2015
                                       ___________
 
        Introduced  by  M. of A. WEINSTEIN, GOTTFRIED, PERRY, JAFFEE, GOLDFEDER,
          MARKEY, TITONE, MOYA, BRINDISI, ROSENTHAL, BENEDETTO,  STECK,  THIELE,
          ABINANTI,  PAULIN, HOOPER, BRONSON, WEPRIN, SIMANOWITZ, MILLER, AUBRY,
          LIFTON, RUSSELL, CLARK, WALKER, RYAN, DINOWITZ --  Multi-Sponsored  by
          --  M.  of A.  BRAUNSTEIN, BUCHWALD, CYMBROWITZ, DAVILA, TITUS, WRIGHT
          -- read once and referred to the Committee on Codes -- 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 causes of action for medical, dental and podiatric malpractice
 
          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 an action or  proceeding  or  to
    11  file  such  notice of claim for medical, dental or podiatric malpractice
    12  shall not begin to run until the later of either: (a) when one knows  or
    13  reasonably  should  have  known of the alleged negligent act or omission
    14  and knows or reasonably should have known that  such  negligent  act  or
    15  omission  has  caused  an  injury; or (b) the date of the last treatment
    16  where there is continuous treatment for  the  same  illness,  injury  or
    17  condition  which  gave  rise  to the accrual of an action. However, such
    18  action shall commence no later than ten years from the act, omission  or
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00100-03-5

        A. 285--A                           2
 
     1  failure complained of or last treatment where there is continuous treat-
     2  ment  for  the  same illness, injury or condition which gave rise to the
     3  act, omission or failure; provided, however, that where  the  action  is
     4  based  upon  the discovery of a foreign object in the body of a patient,
     5  the action may be commenced within one year of the date of such  discov-
     6  ery  or of the date of discovery of facts which would reasonably lead to
     7  such discovery, whichever is earlier.
     8    § 2. Section 214-a of the civil practice law and rules, as amended  by
     9  chapter 485 of the laws of 1986, is amended to read as follows:
    10    §  214-a.  Action  for  medical, dental or podiatric malpractice to be
    11  commenced within two years and six months;  exceptions.  An  action  for
    12  medical,  dental  or  podiatric malpractice must be commenced within two
    13  years and six months of the accrual of any such action.  The accrual  of
    14  an action occurs at the later of either (a) when one knows or reasonably
    15  should  have known of the alleged negligent act or omission and knows or
    16  reasonably should have known that such negligent  act  or  omission  has
    17  caused  an  injury;  or  (b) within two years and six months of the last
    18  treatment where there is continuous  treatment  for  the  same  illness,
    19  injury  or condition which gave rise to the accrual of an action. Howev-
    20  er, such action shall commence no later than ten  years  from  the  act,
    21  omission  or  failure  complained  of  or  last treatment where there is
    22  continuous treatment for the same illness,  injury  or  condition  which
    23  gave  rise to the said act, omission or failure; provided, however, that
    24  where the action is based upon the discovery of a foreign object in  the
    25  body  of the patient, the action may be commenced within one year of the
    26  date of such discovery or of the date of discovery of facts which  would
    27  reasonably lead to such discovery, whichever is earlier. For the purpose
    28  of  this section the term "continuous treatment" shall not include exam-
    29  inations undertaken at the request of the patient for the  sole  purpose
    30  of ascertaining the state of the patient's condition. For the purpose of
    31  this  section  the  term  "foreign  object" shall not include a chemical
    32  compound, fixation device or prosthetic aid or device.
    33    § 3. This act shall take effect immediately.
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