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
                                ___________
 
 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.