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.

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S1098-2011 Actions

• 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

S1098-2011 Memo

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.

S1098-2011 Text

                      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.