Senate Bill S1729

                                 BILL NUMBER : S1729

 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; and providing for one year revival of
previously dismissed actions


 PURPOSE OF BILL :
To amend the statute of limitations for medical, dental or podiatric
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. Section 2 of the bill revives those actions which
would have been time barred or dismissed under the present statute of
limitations for a period of one-year after the enactment of this
legislation. Similar revival legislation has recently been adopted by
the legislature in the area of exposure to toxic substances, with
regard to D.E.S.

 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 not known and is not discovered until
the statute of limitation has run.

Most often this injustice is seen in the cancer cases. 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 the 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 and there
has been no continuous course of treatment, such as in the case of a
radiologist, the patient's claim is time barred, despite the fact that
he or she could not have known that he or she was injured.

In the current climate of breast implant litigation, an equally grave
injustice is being thrust upon women in New York State. Under the
current state of the law the victims of breast implantation can bring
an action against the device manufacturers but not sue the physicians
and surgeons if more than two and a half years has passed from the
date of the last treatment for the implant, despite the fact that the
surgeon bears some degree of responsibility to the breast implant
recipients.  The proposed legislation cures this injustice.

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.

The New York State Trial Lawyers Association strongly supports the
proposed amendment of the statute of limitations as it applies to
accrual of medical malpractice actions.

 LEGISLATIVE HISTORY :
2007 - A.6416 - Rules Report
732
2005 - A.5946/S.962-A - Codes Committee/S. Rules Committee
2006 - S.962 - Referred to Codes
2005 - S.962 - Referred to Codes

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
Immediately.