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

                                  10592

                          I N  A S S E M B L Y

                              April 8, 2010
                               ___________

Introduced  by  M. of A. TITUS -- Multi-Sponsored by -- M. of A. BARRON,
  CASTRO, LANCMAN, MAYERSOHN, ROBINSON -- read once and referred to  the
  Committee on Judiciary

AN  ACT  to amend the civil practice law and rules and the public health
  law, in relation to the time to commence certain malpractice 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.   (A)  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 failure[; provided, however, that where].
  (B) (1) NOTWITHSTANDING SUBDIVISION (A) OF THIS SECTION, AN ACTION FOR
MEDICAL,  DENTAL  OR  PODIATRIC MALPRACTICE NEED NOT 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 FAILURE, IF THE DEFENDANT IS A HOSPITAL AS DEFINED IN SUBDIVISION TEN
OF  SECTION  TWENTY-EIGHT  HUNDRED ONE OF THE PUBLIC HEALTH LAW, AND HAS
FAILED TO FILE AN INCIDENT REPORT AS REQUIRED  BY  SECTION  TWENTY-EIGHT
HUNDRED  FIVE-L  OF SUCH ARTICLE IN CONNECTION WITH THE INCIDENT THAT IS
THE SUBJECT OF THE MALPRACTICE ACTION. IN SUCH CASE, THE ACTION  MAY  BE
COMMENCED WITHIN ONE YEAR OF THE DATE OF THE REQUIRED FILING.
  (2)  NOTWITHSTANDING  SUBDIVISION  (A)  OF THIS SECTION, AN ACTION FOR
MEDICAL, DENTAL OR PODIATRIC MALPRACTICE NEED NOT  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 FAILURE, WHERE SUCH ACTION IS AGAINST A HOSPITAL AS DEFINED IN SUBDI-

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

                                                           LBD11773-02-0

A. 10592                            2

VISION TEN OF SECTION TWENTY-EIGHT HUNDRED ONE OF THE PUBLIC HEALTH LAW,
REGARDLESS OF WHETHER SUCH ACTION IS OTHERWISE BARRED BY SUBDIVISION (A)
OF THIS SECTION AGAINST ANY INDIVIDUAL LICENSED UNDER TITLE EIGHT OF THE
EDUCATION  LAW, WHERE EITHER SUCH INDIVIDUAL OR SUCH HOSPITAL HAS FAILED
TO FILE AN INCIDENT REPORT AS REQUIRED BY SECTION  TWENTY-EIGHT  HUNDRED
FIVE-L  OF THE PUBLIC HEALTH LAW IN CONNECTION WITH THE INCIDENT THAT IS
THE SUBJECT OF THE MALPRACTICE ACTION. IN SUCH CASE, THE ACTION  MAY  BE
COMMENCED WITHIN ONE YEAR OF THE DATE OF THE REQUIRED FILING.
  (C)  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. 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  condition.  For
the  purpose of this section the term "foreign object" shall not include
a chemical compound, fixation device or prosthetic aid or device.
  S 2.  Subdivisions 4 and 5 of section 2805-l of the public health law,
subdivision 5 as renumbered by chapter 632 of  the  laws  of  2006,  are
renumbered subdivisions 5 and 6 and a new subdivision 4 is added to read
as follows:
  4.   NOTWITHSTANDING ANY OTHER PROVISION OF LAW, COPIES OF ANY REPORTS
SUBMITTED TO THE DEPARTMENT UNDER THIS SECTION SHALL ALSO SIMULTANEOUSLY
BE SUBMITTED TO:
  (A) THE PATIENT OR PATIENTS WHO ARE AFFECTED IN SUCH A  MANNER  AS  TO
TRIGGER  THE  REPORTING  REQUIREMENTS  AS  SET  FORTH  IN PARAGRAPHS (A)
THROUGH (G) OF SUBDIVISION TWO OF THIS SECTION;
  (B) IN THE EVENT  THE  PATIENT  IS  DECEASED  OR  INCAPACITATED,  SUCH
REPORTS  SHALL  BE SUBMITTED WITH THE PATIENT'S OR ESTATE'S LEGAL REPRE-
SENTATIVE; AND
  (C) THE PERSON, FAMILY OR OTHERWISE, WHO HAS BEEN  IDENTIFIED  IN  THE
HOSPITAL'S  RECORDS HAS THE PERSON DESIGNATED BY THE PATIENT FOR NOTIFI-
CATION OR CONSULTATION IN THE  EVENT  OF  THE  PATIENT'S  INCAPACITY  OR
DEATH.
  S  3. The public health law is amended by adding two new sections 2823
and 2824 to read as follows:
  S 2823. LIABILITY  OF  HOSPITALS  FOR  INFECTIONS;  PRIVATE  RIGHT  OF
ACTION.  ANY  PERSON,  WHO  IN  THE  COURSE OF A TREATMENT, PROCEDURE OR
DELIVERY OF HEALTH CARE SERVICE, BY ANY HOSPITAL AS DEFINED IN  SUBDIVI-
SION  TEN  OF  SECTION  TWENTY-EIGHT  HUNDRED  ONE  OF  THIS ARTICLE, IS
SUBJECTED TO A HOSPITAL ACQUIRED INFECTION AS DEFINED BY  PARAGRAPH  (A)
OF  SUBDIVISION  ONE  OF  SECTION  TWENTY-EIGHT HUNDRED NINETEEN OF THIS
ARTICLE, MAY BRING A CAUSE OF ACTION FOR  ANY  INJURIES  SUFFERED  AS  A
RESULT  OF  SUCH  INFECTION,  PURSUANT TO THE STATUTE OF LIMITATIONS SET
FORTH IN SECTION TWO HUNDRED FOURTEEN-A OF THE CIVIL  PRACTICE  LAW  AND
RULES.
  S  2824.  STRICT  LIABILITY  FOR  MEDICATION  ERRORS; PRIVATE RIGHT OF
ACTION. EVERY HOSPITAL, AS DEFINED IN SUBDIVISION TEN OF  SECTION  TWEN-
TY-EIGHT  HUNDRED  ONE OF THIS ARTICLE, IS STRICTLY LIABLE FOR ANY INJU-
RIES SUFFERED TO ANY PATIENT AS A RESULT OF AN ERROR IN PROVIDING  MEDI-
CATION  TO  SAID  PATIENT  IN  THE  COURSE  OF A TREATMENT, PROCEDURE OR
DELIVERY OF HEALTH CARE SERVICE.
  S 4. This act shall take effect immediately.