Requires general hospital which submits an incident report to the department of health to simultaneously provide a copy of such report to the affected patients and/ or their legal representatives; stays the statute of limitations for medical, dental and podiatric malpractice causes of action until one year after an incident report is submitted.
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 2 - 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 3 - 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 4 - 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: 2012: Senate Bill 1992-A (Gianaris) - Died in Senate Judiciary Committee 2012: Assembly Bill 4900-A (Simotas)- Died in Assembly Codes Committee 2010: Assembly Bill 9114 (Gianaris) - Died in Assembly Codes Committee
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK ________________________________________________________________________ 578 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sen. GIANARIS -- 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 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 ACTION. IN SUCH CASE, THE ACTION MAY BE COMMENCED WITHIN ONE YEAR OF THE DATE SUCH INCIDENT REPORT IS FILED.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01528-01-3 S. 578 2
(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.