Relates to the time to commence certain medical malpractice actions; provides that actions related to acts or omissions of hospitals where an incident report is required to be filed may be filed within one year of the required filing.
Law Section: Civil Practice Law and Rules
Law: Amd S214-a, CPLR; amd S2805-l, add SS2823 & 2824, Pub Health L
Co-sponsor(s): PERKINSCommittee: JUDICIARY
Law Section: Civil Practice Law and Rules
Law: Amd S214-a, CPLR; amd S2805-l, add SS2823 & 2824, Pub Health L
- Jan 11, 2012: PRINT NUMBER 1098A
- Jan 11, 2012: AMEND AND RECOMMIT TO JUDICIARY
- Jan 4, 2012: REFERRED TO JUDICIARY
- Mar 8, 2011: COMMITTEE DISCHARGED AND COMMITTED TO JUDICIARY
- Jan 5, 2011: REFERRED TO CODES
BILL NUMBER:S1098 REVISED 02/04/11 TITLE OF BILL: 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 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. Finally, the bill provides for a private right of action against a hospital for injuries suffered as a result of a hospital acquired infection, and establishes strict liability against hospitals for medication errors. 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 healthcare 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 - provides for a private right of action as a result of injury from a hospital acquired infection. Section 4 - provides for strict liability against hospitals for medication errors. Section 5 - 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 7,000 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. With respect to hospital acquired infections, it is widely reported that such infections are commonplace and have hugely inflated the number of injuries and death that would otherwise be preventable but for lack of adherence to modern sanitation standards. Indeed, according to a report by the Committee to Reduce Infection Deaths, "infections contracted in hospitals are the fourth largest killer in America." Despite regulatory and self-policing efforts to overcome this frightening and unnecessary phenomenon, patient still suffer needlessly as a result of such infections. As with many other public safety issues over the years, one method of assuring that the self interest of the erstwhile wrongdoer is aligned with that of the victim, thus changing their behavior for the public good, is permitting those harmed by the improper behavior to bring suit for damages. By permitting patients to bring action against hospitals for hospital acquired infections, hospitals will be forced to review their sanitary procedures and provide a safer patient environment. Finally, the matter of medication errors is addressed in the bill as well. Similar to that of hospital-acquired infections, there is no good reason for so many people to be harmed for such mistakes in this day of modern technology and advanced therapeutic practices available to prevent careless mistakes. As with the problem of infections, by making hospitals strictly liable for harms that are the result of preventable error, such institutions will modify their practices that reduce medication errors and substantially enhance patient safety. PRIOR LEGISLATIVE HISTORY: 2009-10: S.5558 - REFERRED TO CODES. FISCAL IMPLICATIONS: None. EFFECTIVE DATE: Immediately.
S T A T E O F N E W Y O R K ________________________________________________________________________ 1098 2011-2012 Regular Sessions I N SENATE January 5, 2011 ___________ Introduced by Sens. PARKER, PERKINS -- 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 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 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. (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 failure[
; provided, however, that 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 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01603-02-1 S. 1098 2 ILLNESS, INJURY OR CONDITION WHICH GAVE RISE TO THE SAID ACT, OMISSION 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. 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 2. Subdivisions 4 and 5 of section 2805-l of the public health law, subdivision 5 as renumbered by chapter 632 of the laws of 2006, are renumbered subdivisions 5 and 6 and a new subdivision 4 is added to read as follows:
4. 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 HAS THE PERSON DESIGNATED BY THE PATIENT FOR NOTIFI- CATION OR CONSULTATION IN THE EVENT OF THE PATIENT'S INCAPACITY OR DEATH. S 3. The public health law is amended by adding two new sections 2823 and 2824 to read as follows:
S 2823. 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 2824. 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. S 4. This act shall take effect immediately.