senate Bill S744

Alters the statute of limitations for medical, dental or podiatric malpractice

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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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  • 09 / Jan / 2013
    • REFERRED TO JUDICIARY

Summary

Alters the statute of limitations for medical, dental or podiatric malpractice to two years and six months from the time when a person 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.

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Bill Details

See Assembly Version of this Bill:
A1056
Versions:
S744
Legislative Cycle:
2013-2014
Current Committee:
Senate Judiciary
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §214-a, CPLR
Versions Introduced in Previous Legislative Cycles:
2011-2012: S5242, A4852
2009-2010: A4627B, S1729A, A4627B
2007-2008: A6416, A6416

Sponsor Memo

BILL NUMBER:S744

TITLE OF BILL:
An act
to amend the civil practice law and rules, in relation to the
limitations of time within which an action for medical, dental or
podiatric malpractice accrues

PURPOSE:
To amend the statute of limitations for medical, dental or podiatric
malpractice to include a discovery of injury rule.

SUMMARY OF PROVISIONS:
Amends Section 214-a of the Civil Practice Law and Rules to accomplish
the above purpose.

EXISTING LAW:
Under current law, a plaintiff has 2.5 years from the act or omission
to commence an action.

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 or 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 or
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 or limitations from being used as an
unfair and inequitable shield front professionally negligent medical
misconduct.

LEGISLATIVE HISTORY:
2011-2012: Senate Judiciary Committee/Assembly Codes Committee
(S.5242/A.4852)

FISCAL IMPLICATIONS:
Undetermined.

EFFECTIVE DATE:
Immediate.

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

                                   744

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced by Sen. FUSCHILLO -- 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 the
  limitations of time within which an  action  for  medical,  dental  or
  podiatric malpractice accrues

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. 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
medical, dental or podiatric malpractice must be  commenced  within  two
years  and  six months of 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  fail-
ure;  provided, however, that where the action is based upon the discov-
ery 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 "contin-
uous treatment" shall not include examinations 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 pros-
thetic aid or device] ACCRUAL OF ANY SUCH ACTION. FOR PURPOSES  OF  THIS
SECTION, 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  SAID  NEGLI-
GENT  ACT  HAS CAUSED AN INJURY; OR, (B) WITHIN TWO YEARS AND SIX MONTHS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01405-01-3

S. 744                              2

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.
  S 2. This act shall take effect immediately.

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