senate Bill S7130

Establishes the date for the accrual of certain causes of action based on negligence

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 30 / Apr / 2014
    • REFERRED TO JUDICIARY

Summary

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

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Bill Details

See Assembly Version of this Bill:
A1056A
Versions:
S7130
Legislative Cycle:
2013-2014
Current Committee:
Senate Judiciary
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §§203 & 214-a, CPLR

Sponsor Memo

BILL NUMBER:S7130

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.

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

                                  7130

                            I N  S E N A T E

                             April 30, 2014
                               ___________

Introduced  by  Sen.  LIBOUS -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

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:

  Section  1. The opening paragraph of subdivision (g) of section 203 of
the civil practice law and rules is designated paragraph  1  and  a  new
paragraph 2 is added to read as follows:
  2. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, FOR THE
PURPOSES  OF  SECTIONS FIFTY-E AND FIFTY-I OF THE GENERAL MUNICIPAL LAW,
SECTION TEN OF THE COURT OF CLAIMS ACT, AND THE PROVISIONS OF ANY  OTHER
LAW  PERTAINING  TO THE COMMENCEMENT OF AN ACTION OR SPECIAL PROCEEDING,
OR TO THE FILING OF A NOTICE  OF  CLAIM  AS  A  CONDITION  PRECEDENT  TO
COMMENCEMENT  OF AN ACTION OR SPECIAL PROCEEDING WITHIN A SPECIFIED TIME
PERIOD, THE PERIOD IN WHICH TO COMMENCE SUCH ACTION OR PROCEEDING OR  TO
FILE  SUCH  NOTICE  OF  CLAIM  SHALL NOT BEING TO RUN UNTIL THE LATER OF
EITHER: (A) WHEN ONE 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;  OR  (B)
THE  DATE  OF THE LAST TREATMENT WHERE THERE IS CONTINUOUS TREATMENT FOR
THE SAME ILLNESS, INJURY OR CONDITION WHICH HAVE RISE TO THE ACCRUAL  OF
AN  ACTION.  HOWEVER, SUCH ACTION SHALL COMMENCE NO LATER THAN TEN YEARS
FROM THE ACT, OMISSION OR FAILURE COMPLAINED OF OR LAST TREATMENT  WHERE
THERE  IS CONTINUOUS TREATMENT FOR THE SAME ILLNESS, INJURY OR CONDITION
WHICH GAVE RISE TO THE ACT, OMISSION OR FAILURE; PROVIDED, HOWEVER, THAT
WHERE THE ACTION IS BASED UPON THE DISCOVERY OF A FOREIGN OBJECT IN  THE
BODY  OF  A  PATIENT, THE ACTION MAY BE COMMENCED WITHIN ONE YEAR OF THE
DATE OF SUCH DISCOVERY OR OF THE DATE OF DISCOVERY OF FACTS WHICH  WOULD
REASONABLY LEAD TO SUCH DISCOVERY, WHICHEVER IS EARLIER.
  S  2. Section 214-a of the civil practice law and rules, as amended by
chapter 485 of the laws of 1986, is amended to read as follows:
  S 214-a. Action for medical, dental or  podiatric  malpractice  to  be
commenced  within  two  years  and six months; exceptions. An action for

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14944-01-4

S. 7130                             2

medical, dental or podiatric malpractice must be  commenced  within  two
years  and six months of the ACCRUAL OF ANY SUCH ACTION.  THE ACCRUAL OF
AN ACTION OCCURS AT THE LATER OF EITHER (A) WHEN ONE 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;  OR  (B) WITHIN TWO YEARS AND SIX MONTHS OF THE LAST
TREATMENT WHERE THERE IS CONTINUOUS  TREATMENT  FOR  THE  SAME  ILLNESS,
INJURY  OR CONDITION WHICH GAVE RISE TO THE ACCRUAL OF AN ACTION. HOWEV-
ER, SUCH ACTION SHALL COMMENCE NO LATER THAN TEN  YEARS  FROM  THE  act,
omission  or  failure  complained  of  or  last treatment where there is
continuous treatment for the same illness,  injury  or  condition  which
gave  rise to the said act, omission or failure; provided, however, that
where the action is based upon the discovery of a foreign object in  the
body  of the patient, the action may be commenced within one year of the
date of such discovery or of the date of discovery of facts which  would
reasonably lead to such discovery, whichever is earlier. For the purpose
of  this section the term "continuous treatment" shall not include exam-
inations undertaken at the request of the patient for the  sole  purpose
of ascertaining the state of the patient's condition. For the purpose of
this  section  the  term  "foreign  object" shall not include a chemical
compound, fixation device or prosthetic aid or device.
  S 3. This act shall take effect immediately.

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