S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4501
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                              March 13, 2019
                                ___________
 
 Introduced  by  Sen.  PARKER -- 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 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 1 of the laws of 2018, 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. (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  fail-
 ure[; provided, however, that: (a) 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 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.
   (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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07738-01-9

 S. 4501                             2
 
 OR FAILURE, WHERE SUCH ACTION IS AGAINST A HOSPITAL AS DEFINED IN SUBDI-
 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; and
   [(b)] (D) where the action is based upon the alleged negligent failure
 to diagnose cancer or a malignant tumor, whether by act or omission, the
 action  may be commenced within two years and six months of the later of
 either (i) when the person knows or reasonably should have known of such
 alleged negligent act or omission and knows or  reasonably  should  have
 known  that  such  alleged  negligent act or omission has caused injury,
 provided, that such action shall be commenced no later than seven  years
 from  such  alleged  negligent  act or omission, or (ii) the date of the
 last treatment where there is  continuous  treatment  for  such  injury,
 illness  or condition. 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.
   §  2.  Subdivisions  3,  4, 5, 6 and 7 of section 2805-l of the public
 health law are renumbered subdivisions 4, 5, 6, 7 and 8 and a new subdi-
 vision 3 is added to read as follows:
   3.  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 AS THE PERSON DESIGNATED BY THE PATIENT FOR NOTIFICA-
 TION OR CONSULTATION IN THE EVENT OF THE PATIENT'S INCAPACITY OR DEATH.
   § 3. The public health law is amended by adding two new sections  2827
 and 2828 to read as follows:
   §  2827.  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. 4501                             3
 
   § 2828. 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.
   § 4. This act shall take effect immediately.