BILL NUMBER:S744

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

SUMMARY OF PROVISIONS:
Amends Section 214-a of the Civil Practice Law and Rules to accomplish
the above purpose.

EXISTING LAW:
Under current law, a plaintiff has 2.5 years from the act or omission
to commence an action.

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 or 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 or
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 or limitations from being used as an
unfair and inequitable shield front professionally negligent medical
misconduct.

LEGISLATIVE HISTORY:
2011-2012:  Senate Judiciary Committee/Assembly Codes Committee
            (S.5242/A.4852)

FISCAL IMPLICATIONS:
Undetermined.

EFFECTIVE DATE:
Immediate.