S1982A-2011 Actions

• Jan 5, 2012: PRINT NUMBER 1982A
• Jan 5, 2012: AMEND AND RECOMMIT TO JUDICIARY
• Jan 4, 2012: REFERRED TO JUDICIARY
• Mar 8, 2011: COMMITTEE DISCHARGED AND COMMITTED TO JUDICIARY
• Jan 14, 2011: REFERRED TO CODES

S1982A-2011 Memo

BILL NUMBER:S1982

TITLE OF BILL:
An act
to amend the civil practice law and rules and the public health law, in
relation to the provision of hospital incident reports to the affected
patients or their representatives

PURPOSE:
This bill would provide extend the statute of limitations in
medical, dental or podiatric malpractice actions against a hospital
where the hospital has violated section 2805-1 of the public health
law by failing to file an incident report as mandated by that
section. It also requires such reports to be sent to the patient and
their representative.

SUMMARY OF PROVISIONS:
Section 1 - tolls the statute of limitations in
a medical, dental or podiatric malpractice action so that where there
is a failure by a hospital to file an incident report as mandated by
the public health law, a plaintiff has a year from the date of filing
of such report in which to commence an action.

In addition, it tolls the statute limitations in a medical, dental or
podiatric malpractice action so that where an action is time-barred
against an individual health care service provider, an action may still
be commenced against a hospital where either the individual or the
hospital has failed to file an incident report as mandated by the
public health law, a plaintiff has a year from the date of filing of
such report in which to commence an action.

Section 2 - requires incident reports submitted to the Department of
Health under section 2805-1 of the public health law also be sent to
the patient and their representative.

Section 3 - effective date.

JUSTIFICATION:
Despite having been a requirement for over twenty
years, there are abundant reports of hospitals failing to file
incident reports as mandated by the public health law. These incident
reports are required in order to give the Department of Health notice
that a significant incident has occurred, such as a patient death
under circumstances other than as a result of the course of disease,
injury or proper treatment. It also includes situations that harmed
patients, such as fires, equipment malfunctions, or poisonings.
According to a Harvard study, over 1,000 New Yorkers die each year as
a result of preventable medical errors. Clearly, these reports are a
significant tool that should be used to prevent the recurrence of
harm or death to patients.

Yet by failing to timely file such reports, hospitals are preventing
the Department of Health from asserting its authority to make sure
the public is adequately protected in the case of substandard patient
care of hospital environment.


Furthermore, the law fails to permit notification to those most
directly affected by such unfortunate events-the patient themselves,
as well. as family or others who are designated to help make crucial
decisions for the patient. By tolling the statute of limitations on
malpractice actions against hospitals, such institutions are
incentivized to obey the clear letter of the law. Furthermore,
hospitals will not be able to protect themselves from liability for
their harmful actions simply by ignoring the law, and thereby further
harming the patient in question first by whatever action led to the
requirement of filing the incident report, then again by not filing
the report, thus preventing the patient or their representative from
accessing information that could help them recover damages for their
death or injury.

PRIOR LEGISLATIVE HISTORY:
New legislation.

FISCAL IMPLICATIONS:
None

EFFECTIVE DATE:
Immediately.

S1982A-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 1982--A
 2011-2012 Regular Sessions
 I N  SENATE
 January 14, 2011
 
 Introduced  by Sen. GIANARIS -- read twice and ordered printed, and when
 printed to be committed to the Committee on Codes  --  recommitted  to
 the Committee on Judiciary in accordance with Senate Rule 6, sec. 8 -
 committee  discharged,  bill amended, ordered reprinted as amended and
 recommitted to said committee
 

AN ACT to amend the civil practice law and rules and the  public  health
 law,  in relation to the provision of hospital incident reports to the
 affected patients or their representatives
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section  1.  Short  title. This act shall be known and may be cited as
 the "patient sunlight act".
 

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. 1. 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 where].
 2. (A) NOTWITHSTANDING THE  PROVISIONS  OF  SUBDIVISION  ONE  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 TREAT
 MENT FOR THE SAME ILLNESS, INJURY OR CONDITION WHICH GAVE RISE  TO  SAID
 ACT,  OMISSION  OR  FAILURE,  IF THE DEFENDANT IS A GENERAL 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
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD04123-03-1
 
       S. 1982--A                          2
 ACTION. IN SUCH CASE, THE ACTION MAY BE COMMENCED WITHIN ONE YEAR OF THE
 DATE SUCH INCIDENT REPORT IS FILED.
 (B) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE 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  FAIL
 URE  COMPLAINED OF OR LAST TREATMENT WHERE THERE IS CONTINUOUS TREATMENT
 FOR THE SAME ILLNESS, INJURY OR CONDITION WHICH GAVE RISE TO  SAID  ACT,
 OMISSION OR FAILURE, WHERE SUCH ACTION IS AGAINST A GENERAL HOSPITAL, AS
 DEFINED  IN  SUBDIVISION  TEN OF SECTION TWENTY-EIGHT HUNDRED ONE OF THE
 PUBLIC HEALTH LAW, REGARDLESS OF WHETHER SUCH ACTION IS OTHERWISE BARRED
 BY SUBDIVISION ONE OF THIS SECTION AGAINST ANY PERSON  LICENSED,  CERTI
 FIED  OR  REGISTERED PURSUANT TO TITLE EIGHT OF THE EDUCATION LAW, WHERE
 SUCH INDIVIDUAL OR GENERAL HOSPITAL  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 SUCH INCIDENT REPORT IS FILED.
 3.    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.
 

S 3.

Section 2805-l of the public health law is amended  by  adding  a
 new subdivision 2-a to read as follows:

 2-A.   NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, COPIES OF
 ANY REPORTS SUBMITTED TO THE DEPARTMENT PURSUANT TO THIS  SECTION  SHALL
 SIMULTANEOUSLY BE PROVIDED TO:

 (A)  THE  PATIENT OR PATIENTS WHO WERE AFFECTED IN SUCH A MANNER AS TO
 REQUIRE THE SUBMISSION OF SUCH INCIDENT REPORT;
 (B) IN THE EVENT SUCH A PATIENT IS  DECEASED  OR  INCAPACITATED,  SUCH
 REPORT  SHALL  BE  PROVIDED TO THE PATIENT'S LEGAL REPRESENTATIVE OR THE
 LEGAL REPRESENTATIVE OF THE PATIENT'S ESTATE; AND
 (C) THE PERSONS, FAMILY OR OTHER PARTY IDENTIFIED  IN  THE  HOSPITAL'S
 RECORDS AS THE PARTY OR PARTIES DESIGNATED BY SUCH PATIENT FOR NOTIFICA
 TION OR CONSULTATION IN THE EVENT OF THE PATIENT'S INCAPACITY OR DEATH.
 

S 4. This act shall take effect immediately.

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