NY State Senate Bill 2017-S4080

Senate Bill S4080

2017-2018 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 Judiciary 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
Jan 03, 2018	referred to judiciary
Feb 02, 2017	referred to judiciary

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2017-S4080 (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §§203 & 214-a, CPLR
Versions Introduced in Other Legislative Sessions:: 2013-2014: S7130
2015-2016: S911, S6596

2017-S4080 (ACTIVE) - Summary

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

2017-S4080 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4080

 TITLE OF BILL :  An act to amend the civil practice law and rules, in
relation to accrual of causes of action for medical, dental and
podiatric malpractice

 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 seven years after the date of
the alleged malpractice. Upon the effective date, patients will have
only one year in which to file a claim for medical malpractice where,
during and up to the seven year period prior to the effective date,
the applicable periods of limitations has or had expired before the
injured plaintiff/claimant or representative of their estate knew or
should have known of the injury and the negligent conduct causing the
injury.

 SUMMARY OF PROVISIONS OF BILL :

Section 1 - 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.

Section 2 - Amends Section 214-a of the civil practice law and rules,
as amended by chapter 485 of the laws of 1986.

Section 3 - Notice of claim provision.

Section 4 - Effective date

 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 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 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 antiquated 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 deadline for filing suite expires. New York has dealt
with this problem in the field of Toxic Torts, for which the
Legislature enacted CPLR Section 214c. That section set forth a
discovery rule in 1986. The justification for the passage of 214-c was
that individuals who were exposed to toxic substances might 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 significant loophole in the law, which
allows a patient's rights to expire without the patient even knowing
that she had any rights. The bill would not mandate that any claim be
deemed meritorious - instead, the bill would merely prevent the state
statute of limitations from being used as an unfair and inequitable
shield from professionally negligent medical misconduct.

 LEGISLATIVE HISTORY :

S.7130 of 2014: S.911A-2015; 2016 - S.6596/B/A10719A

 FISCAL IMPLICATIONS FOR SATE AND LOCAL GOVERNMENTS :

Undetermined.

 EFFECTIVE DATE :
Immediately.

2017-S4080 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4080
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             February 2, 2017
                                ___________
 
 Introduced by Sens. DeFRANCISCO, AKSHAR, AMEDORE, BOYLE, BRESLIN, FUNKE,
   GALLIVAN,  HAMILTON,  HOYLMAN, KAMINSKY, KRUEGER, LANZA, LARKIN, MONT-
   GOMERY, PERKINS, RANZENHOFER, RITCHIE, ROBACH, SANDERS, YOUNG --  read
   twice  and  ordered  printed,  and when printed to be committed to the
   Committee on Judiciary

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

                                                            LBD02848-03-7

 S. 4080                             2
 
 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.
   §  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 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  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 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 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.
   §  3.   Notwithstanding any other provision of law, including sections
 50-e and 50-i of the general municipal law, section 10 of the  court  of
 claims  act  and  the provisions of any general, special or local law or
 charter requiring as a condition precedent to commencement of an  action
 or  special  proceeding  that  a  notice of claim be filed or presented,
 every action for personal  injuries  or  wrongful  death  stemming  from
 alleged  medical  malpractice which has been barred during and up to the
 seven year period prior to the effective date of this act solely because
 the applicable period of limitations  has  or  had  expired  before  the
 injured  plaintiff  or  injured  claimant or the representative of their
 estate did not know and reasonably should not have known that  they  had
 been injured as a result of medical malpractice is hereby revived and an
 action thereon may be commenced provided such action is commenced within
 one year from the effective date of this act.
   § 4. This act shall take effect immediately.

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