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S07588 Summary:

S07588 Actions:

S07588 Committee Votes:

S07588 Floor Votes:

S07588 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         7588--A
 
                    IN SENATE
 
                                    January 26, 2018
                                       ___________
 
        Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
          when printed to be committed to the Committee on  Rules  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
 
        AN ACT to amend the civil practice law and rules, in relation to certain
          negligent  actions  or claims; to amend a chapter of the laws of 2017,
          amending the civil practice law and rules relating to accrual of caus-
          es of  action  for  medical,  dental  and  podiatric  malpractice,  as
          proposed in legislative bills numbers S. 6800 and A. 8516, in relation
          to  the effectiveness thereof; to repeal certain provisions of a chap-
          ter of the laws of 2017, amending the civil  practice  law  and  rules
          relating to accrual of causes of action for medical, dental and podia-
          tric malpractice, as proposed in legislative bills numbers S. 6800 and
          A.    8516,  relating  to  certain negligent acts or omissions; and to
          repeal certain provisions of the civil practice law and rules relating
          thereto
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Paragraph 2 of subdivision (g) of section 203 of the civil
     2  practice law and rules, as added by a  chapter  of  the  laws  of  2017,
     3  amending  the civil practice law and rules relating to accrual of causes
     4  of action for medical, dental and podiatric malpractice, as proposed  in
     5  legislative bills numbers S.6800 and A.8516, is REPEALED and a new para-
     6  graph 2 is added to read as follows:
     7    2.  Notwithstanding paragraph one of this subdivision, in an action or
     8  claim for medical, dental or podiatric malpractice, where the action  or
     9  claim  is based upon the alleged negligent failure to diagnose cancer or
    10  a malignant tumor, whether by act  or  omission,  for  the  purposes  of
    11  sections  fifty-e  and fifty-i of the general municipal law, section ten
    12  of the court of claims act, and the provisions of any other law pertain-
    13  ing to the commencement of an action or special proceeding,  or  to  the
    14  serving of a notice of claim as a condition precedent to commencement of
    15  an action or special proceeding within a specified time period, the time
    16  in  which  to  commence  an  action  or special proceeding or to serve a
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14476-05-8
        S. 7588--A                          2
 
     1  notice of claim shall not begin to run until the  later  of  either  (i)
     2  when  the  person  knows or reasonably should have known of such alleged
     3  negligent act or omission and knows or reasonably should have known that
     4  such alleged negligent act or omission has caused injury, provided, that
     5  such  action  shall  be  commenced  no  later than seven years from such
     6  alleged negligent act or omission, or (ii) the date of the  last  treat-
     7  ment  where  there  is  continuous treatment for such injury, illness or
     8  condition.
     9    § 2. Section 214-a of the civil practice law and rules, as amended  by
    10  a chapter of the laws of 2017, amending the civil practice law and rules
    11  relating  to  accrual of causes of action for medical, dental and podia-
    12  tric malpractice, as proposed in legislative bills  numbers  S.6800  and
    13  A.8516, is amended to read as follows:
    14    §  214-a.  Action  for  medical, dental or podiatric malpractice to be
    15  commenced within two years and six months;  exceptions.  An  action  for
    16  medical,  dental  or  podiatric malpractice must be commenced within two
    17  years and six months of the [accrual of any such action.  The accrual of
    18  an action occurs at the later of either (a) when one knows or reasonably
    19  should have known of the alleged negligent failure to diagnose a  malig-
    20  nant tumor or cancer, whether by act or omission and knows or reasonably
    21  should  have  known  that  such negligent act or omission has caused the
    22  injury; or (b) the date of the last treatment where there is  continuous
    23  treatment  for  the same illness, injury or condition which gave rise to
    24  the accrual of an action. However, such action shall commence  no  later
    25  than  seven  years  from  the] act, omission or failure complained of or
    26  last treatment where there is continuous treatment for the same illness,
    27  injury or condition which gave rise to the said act, omission  or  fail-
    28  ure;  provided,  however,  that:  (a) where the action is based upon the
    29  discovery of a foreign object in the body of the patient, the action may
    30  be commenced within one year of the date of such  discovery  or  of  the
    31  date  of  discovery of facts which would reasonably lead to such discov-
    32  ery, whichever is earlier; and (b) where the action is  based  upon  the
    33  alleged  negligent  failure  to  diagnose  cancer  or a malignant tumor,
    34  whether by act or omission, the action may be commenced within two years
    35  and six months of the later of either  (i)  when  the  person  knows  or
    36  reasonably  should  have known of such alleged negligent act or omission
    37  and knows or reasonably should have known that  such  alleged  negligent
    38  act  or  omission has caused injury, provided, that such action shall be
    39  commenced no later than seven years from such alleged negligent  act  or
    40  omission,  or (ii) the date of the last treatment where there is contin-
    41  uous treatment for such injury, illness or condition.   For the  purpose
    42  of  this section the term "continuous treatment" shall not include exam-
    43  inations undertaken at the request of the patient for the  sole  purpose
    44  of ascertaining the state of the patient's condition. For the purpose of
    45  this  section  the  term  "foreign  object" shall not include a chemical
    46  compound, fixation device or prosthetic aid or device.
    47    § 3. Section 3 of a chapter of the laws of 2017,  amending  the  civil
    48  practice  law  and  rules  relating  to  accrual of causes of action for
    49  medical, dental and podiatric malpractice, as  proposed  in  legislative
    50  bills numbers S.6800 and A.8516, is REPEALED.
    51    §  4.  Notwithstanding sections 50-e and 50-i of the general municipal
    52  law, section 10 of the court of claims act, and the  provisions  of  any
    53  other  law  pertaining  to  the  commencement  of  an  action or special
    54  proceeding, or to the serving of a notice of claim as a condition prece-
    55  dent to commencement of an action or special proceeding within a  speci-
    56  fied  time  period,  with  regard  to  any  action or claim arising from
        S. 7588--A                          3
 
     1  alleged medical malpractice based upon an alleged negligent  failure  to
     2  diagnose cancer or a malignant tumor, whether by act or omission, which,
     3  within  ten  months  prior to the effective date of the act that created
     4  this section, became time-barred under any applicable limitations period
     5  then  in effect, such action or claim may be commenced within six months
     6  of the effective date of the act that  created  this  section,  and  not
     7  beyond.  The  provisions added by section one and amended by section two
     8  of the act that created this section shall not apply to such actions.
     9    § 5. Section 4 of a chapter of the laws of 2017,  amending  the  civil
    10  practice  law  and  rules  relating  to  accrual of causes of action for
    11  medical, dental and podiatric malpractice, as  proposed  in  legislative
    12  bills numbers S.6800 and A.8516, is amended to read as follows:
    13    §  4.  This act shall take effect immediately and shall apply to acts,
    14  omissions, or failures occurring on or after such effective date.
    15    § 6. This act shall take effect immediately; provided,  however,  that
    16  sections  one,  two  and three of this act shall take effect on the same
    17  date and in the same manner as a chapter of the laws of  2017,  amending
    18  the civil practice law and rules relating to accrual of causes of action
    19  for  medical,  dental and podiatric malpractice, as proposed in legisla-
    20  tive bills numbers S.6800 and A.8516, takes  effect  provided,  further,
    21  that the provisions added by section one of this act shall also apply to
    22  acts,  omissions,  or failures occurring within 1 year and 90 days prior
    23  to the effective date of this act, and not before, and further provided,
    24  however, that for actions or claims governed by section 10 of the  court
    25  of  claims  act such section one shall also apply to acts, omissions, or
    26  failures occurring within 2 years prior to the effective  date  of  this
    27  act,  and  not before; provided, further, that the provisions amended by
    28  section two of this act shall also apply to acts, omissions, or failures
    29  occurring within 2 years and 6 months prior to  the  effective  date  of
    30  this act, and not before.