S T A T E O F N E W Y O R K
________________________________________________________________________
6800
2017-2018 Regular Sessions
I N S E N A T E
June 18, 2017
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Introduced by Sen. DeFRANCISCO -- read twice and ordered printed, and
when printed to be committed to the Committee on Rules
AN ACT to amend the civil practice law and rules, in relation to accrual
of causes of action for medical, dental and podiatric malpractice
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 AN ACTION OR PROCEEDING OR TO
FILE SUCH NOTICE OF CLAIM FOR MEDICAL, DENTAL OR PODIATRIC MALPRACTICE
SHALL NOT BEGIN TO RUN UNTIL THE LATER OF EITHER: (A) WHEN ONE KNOWS OR
REASONABLY SHOULD HAVE KNOWN OF THE NEGLIGENT FAILURE TO DIAGNOSE CANCER
OR A MALIGNANT TUMOR WHETHER BY ACT OR OMISSION AND KNOWS OR REASONABLY
SHOULD HAVE KNOWN THAT SUCH NEGLIGENT ACT OR OMISSION HAS CAUSED THE
INJURY; OR (B) THE DATE 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. HOWEVER, SUCH ACTION SHALL COMMENCE NO LATER
THAN SEVEN 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 DISCOV-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13265-01-7
S. 6800 2
ERY OF FACTS WHICH WOULD REASONABLY LEAD TO SUCH DISCOVERY, WHICHEVER IS
EARLIER.
§ 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:
§ 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 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 FAILURE TO DIAGNOSE A MALIG-
NANT TUMOR OR CANCER, WHETHER BY ACT OR OMISSION AND KNOWS OR REASONABLY
SHOULD HAVE KNOWN THAT SUCH NEGLIGENT ACT OR OMISSION HAS CAUSED THE
INJURY; OR (B) THE DATE 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. HOWEVER, SUCH ACTION SHALL COMMENCE NO LATER
THAN SEVEN 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 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.
§ 3. With regard to any person, who within two years and six months
(or in actions to which section 50-e or 50-i of the general municipal
law or section 10 of the court of claims act apply, the period applica-
ble under such sections) prior to the effective date of this act, (a)
knew or reasonably should have known of a negligent act or omission
constituting failure to diagnose a malignant tumor or cancer, and knew
or reasonably should have known that such negligent act or omission has
caused the injury, or (b) within two years and six months (or in actions
to which section 50-e or 50-i of the general municipal law or section 10
of the court of claims act apply, the period applicable under such
sections) of his or her last treatment where there was continuous treat-
ment for the same illness, injury or condition giving rise to the
accrual of an action for failure to diagnose a malignant tumor or
cancer; notwithstanding any other provision of law to the contrary, such
person's action shall be deemed to accrue on the effective date of this
act and shall be commenced within two years and six months (or in
actions to which section 50-e or 50-i of the general municipal law or
section 10 of the court of claims act apply, the period applicable under
such sections) of such effective date, provided that if an action would
be timely pursuant to subdivision (a) of this section, such action must
be commenced within seven years of the act or omission referred to in
subdivision (a) of this section. Where a specific provision of law
exists in any other provision of law which is inconsistent with the
provisions of this act, such provision shall apply unless a provision of
this act specifies that such provision of this act shall apply notwith-
standing any other provision of law.
§ 4. This act shall take effect immediately.
