S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6025
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 21, 2017
                                ___________
 
 Introduced  by M. of A. TITUS -- read once and referred 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:
   § 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.
              

                                                            LBD02617-01-7

 A. 6025                             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.
   § 2.  Subdivisions 3, 4, 5, 6 and 7 of section 2805-l  of  the  public
 health law are renumbered subdivisions 4, 5, 6, 7 and 8 and a new subdi-
 vision 3 is added to read as follows:
   3.   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 AS THE PERSON DESIGNATED BY THE PATIENT FOR NOTIFICA-
 TION OR CONSULTATION IN THE EVENT OF THE PATIENT'S INCAPACITY OR DEATH.
   §  3. The public health law is amended by adding two new sections 2827
 and 2828 to read as follows:
   § 2827. 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.
   §  2828.  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.
   § 4. This act shall take effect immediately.