NY State Senate Bill 2015-S911A

Senate Bill S911A

2015-2016 Legislative Session

Establishes the date for the accrual of causes of action based on medical, dental or podiatric malpractice

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Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 25, 2015	recommitted to rules ordered to third reading cal.1883 committee discharged and committed to rules
Jun 13, 2015	print number 911a
Jun 13, 2015	amend (t) and recommit to codes
Jan 07, 2015	referred to codes

Votes

- Jun 25, 2015 - Rules Committee Vote
  S911A
  
  17
  
  Aye
  
  4
  
  Nay
  
  2
  
  Aye with Reservations
  
  1
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: Jun 25, 2015
      
      aye (17)
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Dilan
      
      Espaillat
      
      Flanagan
      
      Gianaris
      
      Hassell-Thompson
      
      Krueger
      
      Larkin
      
      Little
      
      Marcellino
      
      Montgomery
      
      Nozzolio
      
      Skelos
      
      Stewart-Cousins
      
      Young
      
      nay (4)
      
      Farley
      
      Hannon
      
      Seward
      
      Valesky
      
      aye wr (2)
      
      Carlucci
      
      LaValle
      
      absent (1)
      
      Parker
      
      excused (1)
      
      Perkins

Bill Amendments

Original

A (Active)

co-Sponsors

View additional co-sponsors

2015-S911 - Details

Current Committee:: Senate Rules
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §§203 & 214-a, CPLR
Versions Introduced in Other Legislative Sessions:: 2013-2014: S7130
2017-2018: S4080

2015-S911 - Summary

Establishes the date for the accrual of certain causes of action based on negligence.

2015-S911 - Sponsor Memo

                                BILL NUMBER:S911

TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to accrual of certain causes of action

PURPOSE OF BILL:

To amend the statute of limitations for medical, dental or podiatric
malpractice to include a discovery of injury rule, allowing the
current two and half year statute of limitations to run from the date
an injured patient discovers, or should have discovered, that their
injury was caused by malpractice. However, in no event shall a
malpractice action be filed more than ten years after the date of the
alleged malpractice.

SUMMARY OF PROVISIONS OF BILL:

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

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 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.

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

LEGISLATIVE HISTORY:

S.7130 of 2014: Referred to Judiciary

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

Undetermined.

EFFECTIVE DATE:

Immediately.

2015-S911 - Bill Text download pdf

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

                                   911

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             January 7, 2015
                               ___________

Introduced  by  Sen.  LIBOUS -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the civil practice law and rules, in relation to accrual
  of certain causes of action

  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 SUCH ACTION OR PROCEEDING OR  TO
FILE  SUCH  NOTICE  OF  CLAIM  SHALL NOT BEGIN TO RUN UNTIL THE LATER OF
EITHER: (A) WHEN ONE KNOWS  OR  REASONABLY  SHOULD  HAVE  KNOWN  OF  THE
ALLEGED  NEGLIGENT  ACT  OR OMISSION AND KNOWS OR REASONABLY SHOULD HAVE
KNOWN THAT SUCH NEGLIGENT ACT OR OMISSION HAS CAUSED AN 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 TEN 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 DISCOVERY OF FACTS WHICH  WOULD
REASONABLY LEAD TO SUCH DISCOVERY, WHICHEVER IS EARLIER.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00100-01-5

S. 911                              2

  S  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:
  S  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 ACT OR OMISSION AND KNOWS OR
REASONABLY SHOULD HAVE KNOWN THAT SUCH NEGLIGENT  ACT  OR  OMISSION  HAS
CAUSED  AN  INJURY;  OR  (B) WITHIN TWO YEARS AND SIX MONTHS 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. HOWEV-
ER, SUCH ACTION SHALL COMMENCE NO LATER THAN TEN  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 failure; provided, however, that
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 exam-
inations 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 3. This act shall take effect immediately.

co-Sponsors

View additional co-sponsors

2015-S911A (ACTIVE) - Details

Current Committee:: Senate Rules
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §§203 & 214-a, CPLR
Versions Introduced in Other Legislative Sessions:: 2013-2014: S7130
2017-2018: S4080

2015-S911A (ACTIVE) - Summary

Establishes the date for the accrual of certain causes of action based on negligence.

2015-S911A (ACTIVE) - Bill Text download pdf

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

                                 911--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             January 7, 2015
                               ___________

Introduced  by  Sens.  LIBOUS, ADDABBO, AMEDORE, AVELLA, BOYLE, BRESLIN,
  DeFRANCISCO, DILAN, ESPAILLAT, FUNKE,  GALLIVAN,  GIANARIS,  HAMILTON,
  HASSELL-THOMPSON,  HOYLMAN,  KENNEDY, KRUEGER, LANZA, LARKIN, LATIMER,
  MONTGOMERY, PANEPINTO, PARKER, PERALTA, PERKINS, RANZENHOFER, RITCHIE,
  ROBACH, SANDERS, SERRANO, SQUADRON, STAVISKY, VALESKY, YOUNG  --  read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Codes --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

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 ALLEGED NEGLIGENT  ACT  OR  OMISSION
AND  KNOWS  OR  REASONABLY  SHOULD HAVE KNOWN THAT SUCH NEGLIGENT ACT OR
OMISSION HAS CAUSED AN 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 TEN YEARS FROM THE ACT, OMISSION OR
FAILURE COMPLAINED OF OR LAST TREATMENT WHERE THERE IS CONTINUOUS TREAT-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00100-02-5

S. 911--A                           2

MENT 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 DISCOV-
ERY OR OF THE DATE OF DISCOVERY OF FACTS WHICH WOULD REASONABLY LEAD  TO
SUCH DISCOVERY, WHICHEVER IS EARLIER.
  S  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:
  S 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 ACT OR OMISSION AND KNOWS  OR
REASONABLY  SHOULD  HAVE  KNOWN  THAT SUCH NEGLIGENT ACT OR OMISSION HAS
CAUSED AN INJURY; OR (B) WITHIN TWO YEARS AND SIX  MONTHS  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.  HOWEV-
ER,  SUCH  ACTION  SHALL  COMMENCE NO LATER THAN TEN 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 failure; provided, however,  that
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  exam-
inations  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 3. This act shall take effect immediately.

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Senate Bill S911A

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Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

Bill Amendments

co-Sponsors

2015-S911 - Details

2015-S911 - Summary

2015-S911 - Sponsor Memo

2015-S911 - Bill Text download pdf

co-Sponsors

2015-S911A (ACTIVE) - Details

2015-S911A (ACTIVE) - Summary

2015-S911A (ACTIVE) - Bill Text download pdf

Comments