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

                                  1622

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  M.  of  A.  ZEBROWSKI, ALFANO, ESPAILLAT, JAFFEE, ORTIZ,
  ARROYO, FIELDS, LANCMAN, J. RIVERA, CLARK, GALEF,  MAISEL,  EDDINGTON,
  HEVESI  --  Multi-Sponsored  by  --  M.    of A. HOOPER, HYER-SPENCER,
  V. LOPEZ, McENENY, PHEFFER, ROBINSON,  WEISENBERG  --  read  once  and
  referred to the Committee on Codes

AN  ACT  to  amend  the  penal law, in relation to creating the crime of
  reckless infection of a patient  with  a  communicable  disease  by  a
  health  care  provider; to amend the public health law, in relation to
  requiring the notification of patients by the department of health  if
  a  health  care  provider  is determined to have exposed patients to a
  communicable disease through reckless conduct; to amend the  education
  law,  in  relation  to establishing as professional misconduct certain
  reckless conduct; and to amend the civil practice law  and  rules,  in
  relation to the time period for commencing certain medical malpractice
  actions

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

  Section 1. The penal law is amended by adding a new section 240.67  to
read as follows:
S 240.67 RECKLESS  INFECTION OF A PATIENT WITH A COMMUNICABLE DISEASE BY
           A HEALTH CARE PROVIDER.
  A PERSON IS GUILTY OF RECKLESS INFECTION OF A PATIENT WITH A  COMMUNI-
CABLE  DISEASE  BY  A  HEALTH  CARE PROVIDER WHEN A HEALTH CARE PROVIDER
THROUGH RECKLESS CONDUCT, INCLUDING, BUT NOT LIMITED TO, THE REUSE OF  A
SYRINGE,  NEEDLE  OR  OTHER SHARP, INFECTS A PATIENT WITH A COMMUNICABLE
DISEASE. FOR THE PURPOSES OF THIS SECTION, "HEALTH CARE PROVIDER"  MEANS
ANY PERSON WHO IS, OR IS REQUIRED TO BE, LICENSED OR REGISTERED OR HOLDS
HIMSELF  OR  HERSELF  OUT  TO  BE  LICENSED  OR  REGISTERED, OR PROVIDES
SERVICES AS IF HE OR SHE WERE LICENSED OR REGISTERED IN  THE  PROFESSION
OF  MEDICINE,  CHIROPRACTIC,  DENTISTRY  OR  PODIATRY  UNDER  ANY OF THE

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

                                                           LBD01933-01-9

A. 1622                             2

FOLLOWING: ARTICLE ONE HUNDRED THIRTY-ONE, ONE HUNDRED  THIRTY-TWO,  ONE
HUNDRED THIRTY-THREE, OR ONE HUNDRED FORTY-ONE OF THE EDUCATION LAW.
  RECKLESS  INFECTION  OF  A  PATIENT  WITH  A COMMUNICABLE DISEASE BY A
HEALTH CARE PROVIDER IS A CLASS E FELONY.
  S 2. Subdivision 1 of section 206 of the public health law is  amended
by adding a new paragraph (t) to read as follows:
  (T)  NOTIFY  THE PATIENT OR PATIENTS OF A HEALTH CARE PROVIDER IF SUCH
HEALTH CARE PROVIDER IS DETERMINED  TO  HAVE  EXPOSED  SUCH  PATIENT  OR
PATIENTS  TO A COMMUNICABLE DISEASE THROUGH RECKLESS CONDUCT, INCLUDING,
BUT NOT LIMITED TO, THE REUSE OF A SYRINGE, NEEDLE OR OTHER SHARP.
  S 3. Section 6530 of the education law is  amended  by  adding  a  new
subdivision 50 to read as follows:
  50.  EXPOSING  PATIENTS  TO  A  COMMUNICABLE  DISEASE  DUE TO RECKLESS
CONDUCT, INCLUDING, BUT NOT LIMITED TO, THE REUSE OF A  SYRINGE,  NEEDLE
OR OTHER SHARP.
  S  4. 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.  1. 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:
  (A) 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; AND
  (B) WHERE THE ACTION IS BASED UPON THE INFECTION OF THE PATIENT WITH A
COMMUNICABLE DISEASE THROUGH THE  RECKLESS  CONDUCT  OF  A  HEALTH  CARE
PROVIDER  INCLUDING,  BUT NOT LIMITED TO, THE REUSE OF A SYRINGE, NEEDLE
OR OTHER SHARP, THE ACTION SHALL BE COMMENCED WITHIN TWO YEARS  AND  SIX
MONTHS  OF THE DATE UPON WHICH A PATIENT: (I) IS INFORMED BY THE DEPART-
MENT OF HEALTH THAT HE OR SHE MAY HAVE BEEN EXPOSED  TO  A  COMMUNICABLE
DISEASE  BY  THE  RECKLESS  CONDUCT  OF  A HEALTH CARE PROVIDER; OR (II)
OTHERWISE BECOMES AWARE OF SUCH FACTS AS WOULD LEAD A REASONABLE  PERSON
TO BELIEVE THAT HE OR SHE HAD BEEN SO EXPOSED.
  2.  For  the  purpose  of this section the term "continuous treatment"
shall not include examinations undertaken at the request of the  patient
for  the  sole purpose of ascertaining the state of the patient's condi-
tion. For the purpose of this section the term  "foreign  object"  shall
not  include  a  chemical compound, fixation device or prosthetic aid or
device.
  S 5. This act shall take effect on the one hundred twentieth day after
it shall have become a law; provided, however, that effective immediate-
ly, the addition, amendment and/or repeal  of  any  rule  or  regulation
necessary  for  the  implementation of this act on its effective date is
authorized and directed to be made  and  completed  on  or  before  such
effective date.