NY State Assembly Bill 2009-A4627

Archive: Last Bill Status - In Assembly Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 14, 2010	print number 4627b
Jun 14, 2010	amend and recommit to codes
Jan 06, 2010	referred to codes
Jun 22, 2009	reported referred to rules
Feb 20, 2009	print number 4627a
Feb 20, 2009	amend (t) and recommit to codes
Feb 05, 2009	referred to codes

Bill Amendments

Original

B (Active)

2009-A4627 - Details

Current Committee:: Assembly Codes
Versions Introduced in Other Legislative Sessions:: 2011-2012: A4852
2013-2014: A1056
2015-2016: A285
2017-2018: A3339

2009-A4627 - 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.

2009-A4627 - Bill Text download pdf

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

                                  4627

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 5, 2009
                               ___________

Introduced  by  M.  of A. WEINSTEIN, GOTTFRIED, JOHN, N. RIVERA, GREENE,
  McENENY, POWELL, HOOPER, KOON, PAULIN, PERALTA, CAHILL --  Multi-Spon-
  sored  by -- M. of A. BING, MILLMAN, PHEFFER -- read once and referred
  to the Committee on Codes

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; and providing for one year  revival  of
  previously dismissed actions

  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 WHEN ONE KNOWS OR REASONABLY
SHOULD HAVE KNOWN OF THE ALLEGED NEGLIGENT ACT OR OMISSION AND KNOWS  OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06404-02-9

A. 4627                             2

REASONABLY SHOULD HAVE KNOWN THAT SAID NEGLIGENT ACT HAS CAUSED AN INJU-
RY;  OR,  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.
  S  2.  Every  action for personal injury or death sounding in medical,
dental or podiatric malpractice, which is barred  as  of  the  effective
date  of  this act or which was dismissed prior to the effective date of
this act solely because the applicable period of limitations has or  had
expired,  is  hereby  revived  and  an  action  thereon may be commenced
provided such action is commenced within one  year  from  the  effective
date  of  this act; provided however, that this section shall not revive
any action for damages for a wrongful act, neglect or default causing  a
decedent's  death  and could have been brought pursuant to section 5-4.1
of the estates, powers and trusts law, and provided, further,  that  for
any revived claim or action, including third party claims and claims for
contribution  pursuant to article 14 of the civil practice law and rules
for which a notice of claim is or would have been required by law  as  a
condition  precedent to the claim or action, a notice of claim shall not
be required.
  S 3. This act shall take effect immediately.

co-Sponsors

View additional co-sponsors

multi-Sponsors

2009-A4627A - Details

Current Committee:: Assembly Codes
Versions Introduced in Other Legislative Sessions:: 2011-2012: A4852
2013-2014: A1056
2015-2016: A285
2017-2018: A3339

2009-A4627A - Summary

2009-A4627A - Sponsor Memo

                                BILL NUMBER:A4627A              REPLACEMENT 5/21/10

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

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   from   professionally  negligent  medical
misconduct.

LEGISLATIVE HISTORY:
2009: A.4627-A - A. Rules Committee
2008: A.6416 - A. Rules Committee
2007: A.6416 - Rules Report
732
2005: A.5946/S.962 - A. Codes Committee/S. Codes Committee
2003-04: A.6544/S.2588 A. Codes Committee/S. Codes Committee
2002: A.7793/S.7454 - Codes Committee/ S. Rules Committee
2001: A.7793 - Codes Committee
2000: A.6559-A Codes Committee
1999: A.6559-A - Assembly Calendar
1998: A.5344 - Rules Committee
1997: A.5344 - Codes Committee
1995-96: A.6041- Codes Committee

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:  Undetermined.

EFFECTIVE DATE: Immediately.

2009-A4627A - Bill Text download pdf

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

                                 4627--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 5, 2009
                               ___________

Introduced  by  M.  of A. WEINSTEIN, GOTTFRIED, JOHN, N. RIVERA, GREENE,
  McENENY, POWELL, HOOPER, PAULIN, PERALTA, CAHILL -- Multi-Sponsored by
  -- M. of A. BING, MILLMAN, PHEFFER -- read once and  referred  to  the
  Committee  on  Codes  --  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  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 WHEN ONE  KNOWS  OR  REASONABLY
SHOULD  HAVE KNOWN OF THE ALLEGED NEGLIGENT ACT OR OMISSION AND KNOWS OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06404-03-9

A. 4627--A                          2

REASONABLY SHOULD HAVE KNOWN THAT SAID NEGLIGENT ACT HAS CAUSED AN INJU-
RY; OR, 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.
  S 2. This act shall take effect immediately.

co-Sponsors

View additional co-sponsors

multi-Sponsors

2009-A4627B (ACTIVE) - Details

Current Committee:: Assembly Codes
Versions Introduced in Other Legislative Sessions:: 2011-2012: A4852
2013-2014: A1056
2015-2016: A285
2017-2018: A3339

2009-A4627B (ACTIVE) - Summary

2009-A4627B (ACTIVE) - Bill Text download pdf

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

                                 4627--B

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 5, 2009
                               ___________

Introduced  by  M. of A. WEINSTEIN, GOTTFRIED, JOHN, N. RIVERA, McENENY,
  POWELL, HOOPER, PAULIN,  CAHILL,  PERRY,  JAFFEE,  STIRPE,  D. WEPRIN,
  CUSICK -- Multi-Sponsored by -- M. of A. ENGLEBRIGHT, MILLMAN, PHEFFER
  --  read  once  and  referred  to  the Committee on Codes -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee -- recommitted to the Committee on Codes in  accord-
  ance  with  Assembly  Rule  3,  sec.  2  -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06404-08-0

A. 4627--B                          2

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
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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Assembly Bill A4627

Sponsored By

Archive: Last Bill Status - In Assembly Committee

Bill Amendments

2009-A4627 - Details

2009-A4627 - Summary

2009-A4627 - Bill Text download pdf

co-Sponsors

multi-Sponsors

2009-A4627A - Details

2009-A4627A - Summary

2009-A4627A - Sponsor Memo

2009-A4627A - Bill Text download pdf

co-Sponsors

multi-Sponsors

2009-A4627B (ACTIVE) - Details

2009-A4627B (ACTIVE) - Summary

2009-A4627B (ACTIVE) - Bill Text download pdf

Comments

Assembly Bill A4627

Share this bill

Sponsored By

WEINSTEIN

Archive: Last Bill Status - In Assembly Committee

Bill Amendments

2009-A4627 - Details

2009-A4627 - Summary

2009-A4627 - Bill Text download pdf

co-Sponsors

Richard Gottfried

Susan John

Naomi Rivera

John McEneny

multi-Sponsors

Steven Englebright

Joan Millman

Audrey Pheffer

2009-A4627A - Details

2009-A4627A - Summary

2009-A4627A - Sponsor Memo

2009-A4627A - Bill Text download pdf

co-Sponsors

Richard Gottfried

Susan John

Naomi Rivera

John McEneny

multi-Sponsors

Steven Englebright

Joan Millman

Audrey Pheffer

2009-A4627B (ACTIVE) - Details

2009-A4627B (ACTIVE) - Summary

2009-A4627B (ACTIVE) - Bill Text download pdf

Comments