Bill Text: NY S04080 | 2017-2018 | General Assembly | Introduced


Bill Title: Establishes the date for the accrual of certain causes of action based on negligence.

Spectrum: Slight Partisan Bill (Democrat 24-14)

Status: (Introduced - Dead) 2018-01-03 - REFERRED TO JUDICIARY [S04080 Detail]

Download: New_York-2017-S04080-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          4080
                               2017-2018 Regular Sessions
                    IN SENATE
                                    February 2, 2017
                                       ___________
        Introduced by Sens. DeFRANCISCO, AKSHAR, AMEDORE, BOYLE, BRESLIN, FUNKE,
          GALLIVAN,  HAMILTON,  HOYLMAN, KAMINSKY, KRUEGER, LANZA, LARKIN, MONT-
          GOMERY, PERKINS, RANZENHOFER, RITCHIE, ROBACH, SANDERS, YOUNG --  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 accrual
          of causes of action for medical, dental and podiatric malpractice
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1. The opening paragraph of subdivision (g) of section 203 of
     2  the civil practice law and rules is designated paragraph  1  and  a  new
     3  paragraph 2 is added to read as follows:
     4    2. Notwithstanding any other provision of law to the contrary, for the
     5  purposes  of  sections fifty-e and fifty-i of the general municipal law,
     6  section ten of the court of claims act, and the provisions of any  other
     7  law  pertaining  to the commencement of an action or special proceeding,
     8  or to the filing of a notice  of  claim  as  a  condition  precedent  to
     9  commencement  of an action or special proceeding within a specified time
    10  period, the period in which to commence an action or  proceeding  or  to
    11  file  such  notice of claim for medical, dental or podiatric malpractice
    12  shall not begin to run until the later of either: (a) when one knows  or
    13  reasonably  should  have  known of the alleged negligent act or omission
    14  and knows or reasonably should have known that  such  negligent  act  or
    15  omission  has  caused  an  injury; or (b) the date of the last treatment
    16  where there is continuous treatment for  the  same  illness,  injury  or
    17  condition  which  gave  rise  to the accrual of an action. However, such
    18  action shall commence no later than seven years from the  act,  omission
    19  or  failure  complained  of  or last treatment where there is continuous
    20  treatment for the same illness, injury or condition which gave  rise  to
    21  the  act,  omission or failure; provided, however, that where the action
    22  is based upon the discovery of  a  foreign  object  in  the  body  of  a
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02848-03-7

        S. 4080                             2
     1  patient, the action may be commenced within one year of the date of such
     2  discovery  or  of  the date of discovery of facts which would reasonably
     3  lead to such discovery, whichever is earlier.
     4    §  2. Section 214-a of the civil practice law and rules, as amended by
     5  chapter 485 of the laws of 1986, is amended to read as follows:
     6    § 214-a. Action for medical, dental or  podiatric  malpractice  to  be
     7  commenced  within  two  years  and six months; exceptions. An action for
     8  medical, dental or podiatric malpractice must be  commenced  within  two
     9  years  and six months of the accrual of any such action.  The accrual of
    10  an action occurs at the later of either (a) when one knows or reasonably
    11  should have known of the alleged negligent act or omission and knows  or
    12  reasonably  should  have  known  that such negligent act or omission has
    13  caused an injury; or (b) the date of the last treatment where  there  is
    14  continuous  treatment  for  the  same illness, injury or condition which
    15  gave rise to the accrual  of  an  action.  However,  such  action  shall
    16  commence  no  later  than  seven years from the act, omission or failure
    17  complained of or last treatment where there is continuous treatment  for
    18  the  same  illness, injury or condition which gave rise to the said act,
    19  omission or failure; provided, however, that where the action  is  based
    20  upon  the  discovery of a foreign object in the body of the patient, the
    21  action may be commenced within one year of the date of such discovery or
    22  of the date of discovery of facts which would reasonably  lead  to  such
    23  discovery,  whichever  is  earlier.  For the purpose of this section the
    24  term "continuous treatment" shall not include examinations undertaken at
    25  the request of the patient for the  sole  purpose  of  ascertaining  the
    26  state  of  the  patient's condition. For the purpose of this section the
    27  term "foreign object" shall not include a  chemical  compound,  fixation
    28  device or prosthetic aid or device.
    29    §  3.   Notwithstanding any other provision of law, including sections
    30  50-e and 50-i of the general municipal law, section 10 of the  court  of
    31  claims  act  and  the provisions of any general, special or local law or
    32  charter requiring as a condition precedent to commencement of an  action
    33  or  special  proceeding  that  a  notice of claim be filed or presented,
    34  every action for personal  injuries  or  wrongful  death  stemming  from
    35  alleged  medical  malpractice which has been barred during and up to the
    36  seven year period prior to the effective date of this act solely because
    37  the applicable period of limitations  has  or  had  expired  before  the
    38  injured  plaintiff  or  injured  claimant or the representative of their
    39  estate did not know and reasonably should not have known that  they  had
    40  been injured as a result of medical malpractice is hereby revived and an
    41  action thereon may be commenced provided such action is commenced within
    42  one year from the effective date of this act.
    43    § 4. This act shall take effect immediately.
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