Bill S744-2013

Alters the statute of limitations for medical, dental or podiatric malpractice

Alters the statute of limitations for medical, dental or podiatric malpractice to two years and six months from the time when a person knows or reasonably should have known of the alleged negligent act or omission and knows or reasonably should have known that such negligent act or omission has caused an injury.

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  • Jan 9, 2013: REFERRED TO JUDICIARY

Memo

BILL NUMBER:S744

TITLE OF BILL: An act to amend the civil practice law and rules, in relation to the limitations of time within which an action for medical, dental or podiatric malpractice accrues

PURPOSE: To amend the statute of limitations for medical, dental or podiatric malpractice to include a discovery of injury rule.

SUMMARY OF PROVISIONS: Amends Section 214-a of the Civil Practice Law and Rules to accomplish the above purpose.

EXISTING LAW: Under current law, a plaintiff has 2.5 years from the act or omission to commence an action.

JUSTIFICATION: New York's current statute of limitations as to medical malpractice is two and one half years from the date of the act, omission or failure complained of or last treatment where there is continuous treatment. It is not only the shortest negligence statute in the State of New York, except for claims against municipalities, but works undue hardship in its application and interpretation.

The courts in this State have consistently interpreted the accrual of a cause of action for negligence as occurring at the time the act complained of occurred. In medical malpractice cases, arising out of a misdiagnosis or the failure to diagnose, the injury suffered by the victim of such a tort is often discovered until the well after the statute of limitation has expired.

This injustice is sometimes seen when a patient discovers the growth of a cancerous tumor. For example, a patient is seen by a physician for rather general complaints and a series of tests are ordered, including an x-ray. The patient is diagnosed as having no illness. Several years later the patient is diagnosed as having a spot on the lung by a different physician. Review of the original x-ray films show the presence of a spot on the earlier film. Time is of the essence in the treatment of cancer if one is to get a favorable chance at long term survival. If more than two and one half years have passed from the date of the original x-ray (assuming no continuous course of treatment), the patient's claim is time barred, despite the fact that the patient could not have reasonably known of the existence of the medical misconduct.

Another example of this type of injustice occurs when a patient has been exposed to inadequate hygienic conditions, i.e. is infected with hepatitis-C or HIV by an inadequately sterilized, re-used, or otherwise "dirty" syringe. The infected patient may in fact be totally asymptomatic for years after the two and one half year

statute of limitations has expired. However, if symptoms (and hence discovery of the medical misconduct) become apparent only after the expiration of the statute, the patient nevertheless has no legal recourse.

The current statute of limitations is based upon an archaic rule that a cause of action sounding in negligence accrues at the time of the negligent act. The better rule and the one most widely adopted in other jurisdictions, such as New Jersey, North Carolina, and claims against the United States or America arising under the Federal Tort Claims Act, is one which recognizes that some injuries do not manifest themselves at the time of the negligent act, and which permits a victim of medical malpractice to discover his or her injury before their statutory period to begin suit runs. New York has dealt with this problem in the field of Toxic Torts. In 1986 the Legislature enacted CPLR Section 214-c. That section set forth a discovery rule for injuries suffered as a result of exposure and implantation (1992 amendment) of foreign substances. The justification for the passage of 214-c was that individuals who were exposed to toxic substances did not show any adverse health effects until after the three (3) year general negligence statute or limitations had run. The issue was revisited in 1992 when that act was amended to include implantation within "exposure" to remedy an injustice to victims of breast implants.

This bill would remove this gaping loophole in the law, which allows a patient's rights to expire prior to the patient even knowing that she had any rights in the first place. The bill would certainly not mandate that any claim be deemed meritorious - instead, the bill would merely prevent the statute or limitations from being used as an unfair and inequitable shield front professionally negligent medical misconduct.

LEGISLATIVE HISTORY: 2011-2012: Senate Judiciary Committee/Assembly Codes Committee (S.5242/A.4852)

FISCAL IMPLICATIONS: Undetermined.

EFFECTIVE DATE: Immediate.


Text

STATE OF NEW YORK ________________________________________________________________________ 744 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sen. FUSCHILLO -- 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, in relation to the limitations of time within which an action for medical, dental or podiatric malpractice accrues 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. 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 the action is based upon the discov- ery 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 "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] ACCRUAL OF ANY SUCH ACTION. FOR PURPOSES OF THIS SECTION, THE ACCRUAL OF AN ACTION OCCURS AT THE LATER OF EITHER (A) WHEN ONE KNOWS OR REASONABLY SHOULD HAVE KNOWN OF THE ALLEGED NEGLIGENT ACT OR OMISSION AND KNOWS OR REASONABLY SHOULD HAVE KNOWN THAT SAID NEGLI- GENT ACT HAS CAUSED AN INJURY; OR, (B) WITHIN TWO YEARS AND SIX MONTHS
OF THE LAST TREATMENT WHERE THERE IS CONTINUOUS TREATMENT FOR THE SAME ILLNESS, INJURY OR CONDITION WHICH GAVE RISE TO THE ACCRUAL OF AN ACTION. S 2. This act shall take effect immediately.

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