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S06800 Summary:

BILL NOS06800
 
SAME ASSAME AS A08516
 
SPONSORDEFRANCISCO
 
COSPNSRFUNKE, RITCHIE
 
MLTSPNSR
 
Amd 203 & 214-a, CPLR
 
Relates to accrual of causes of action for medical, dental and podiatric malpractice; relates to the time period in which to commence an action for proceedings involving negligent failure to diagnose cancer or a malignant tumor.
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S06800 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6800
 
                               2017-2018 Regular Sessions
 
                    IN SENATE
 
                                      June 18, 2017
                                       ___________
 
        Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
          when printed to be committed to the Committee on Rules
 
        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 negligent failure to diagnose cancer
    14  or  a malignant tumor whether by act or omission and knows or reasonably
    15  should have known that such negligent act or  omission  has  caused  the
    16  injury;  or (b) the date of the last treatment where there is continuous
    17  treatment for the same illness, injury or condition which gave  rise  to
    18  the  accrual  of an action. However, such action shall commence no later
    19  than seven years from the act, omission or failure complained of or last
    20  treatment where there is continuous  treatment  for  the  same  illness,
    21  injury  or  condition  which  gave rise to the act, omission or failure;
    22  provided, however, that where the action is based upon the discovery  of
    23  a  foreign  object in the body of a patient, the action may be commenced
    24  within one year of the date of such discovery or of the date of  discov-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13265-01-7

        S. 6800                             2
 
     1  ery of facts which would reasonably lead to such discovery, whichever is
     2  earlier.
     3    §  2. Section 214-a of the civil practice law and rules, as amended by
     4  chapter 485 of the laws of 1986, is amended to read as follows:
     5    § 214-a. Action for medical, dental or  podiatric  malpractice  to  be
     6  commenced  within  two  years  and six months; exceptions. An action for
     7  medical, dental or podiatric malpractice must be  commenced  within  two
     8  years  and six months of the accrual of any such action.  The accrual of
     9  an action occurs at the later of either (a) when one knows or reasonably
    10  should have known of the alleged negligent failure to diagnose a  malig-
    11  nant tumor or cancer, whether by act or omission and knows or reasonably
    12  should  have  known  that  such negligent act or omission has caused the
    13  injury; or (b) the date of the last treatment where there is  continuous
    14  treatment  for  the same illness, injury or condition which gave rise to
    15  the accrual of an action. However, such action shall commence  no  later
    16  than seven years from the act, omission or failure complained of or last
    17  treatment  where  there  is  continuous  treatment for the same illness,
    18  injury or condition which gave rise to the said act, omission  or  fail-
    19  ure;  provided, however, that where the action is based upon the discov-
    20  ery of a foreign object in the body of the patient, the  action  may  be
    21  commenced  within  one year of the date of such discovery or of the date
    22  of discovery of facts which would reasonably  lead  to  such  discovery,
    23  whichever  is earlier. For the purpose of this section the term "contin-
    24  uous treatment" shall not include examinations undertaken at the request
    25  of the patient for the sole purpose of ascertaining  the  state  of  the
    26  patient's  condition.  For the purpose of this section the term "foreign
    27  object" shall not include a chemical compound, fixation device or  pros-
    28  thetic aid or device.
    29    §  3.  With regard to any person, who within two years and  six months
    30  (or in actions to which section 50-e or 50-i of  the  general  municipal
    31  law  or section 10 of the court of claims act apply, the period applica-
    32  ble under such sections) prior to the effective date of  this  act,  (a)
    33  knew  or  reasonably  should  have  known of a negligent act or omission
    34  constituting failure to diagnose a malignant tumor or cancer,  and  knew
    35  or  reasonably should have known that such negligent act or omission has
    36  caused the injury, or (b) within two years and six months (or in actions
    37  to which section 50-e or 50-i of the general municipal law or section 10
    38  of the court of claims act  apply,  the  period  applicable  under  such
    39  sections) of his or her last treatment where there was continuous treat-
    40  ment  for  the  same  illness,  injury  or  condition giving rise to the
    41  accrual of an action for  failure  to  diagnose  a  malignant  tumor  or
    42  cancer; notwithstanding any other provision of law to the contrary, such
    43  person's  action shall be deemed to accrue on the effective date of this
    44  act and shall be commenced within  two  years  and  six  months  (or  in
    45  actions  to  which  section 50-e or 50-i of the general municipal law or
    46  section 10 of the court of claims act apply, the period applicable under
    47  such sections) of such effective date, provided that if an action  would
    48  be  timely pursuant to subdivision (a) of this section, such action must
    49  be commenced within seven years of the act or omission  referred  to  in
    50  subdivision  (a)  of  this  section.   Where a specific provision of law
    51  exists in any other provision of law  which  is  inconsistent  with  the
    52  provisions of this act, such provision shall apply unless a provision of
    53  this  act specifies that such provision of this act shall apply notwith-
    54  standing any other provision of law.
    55    § 4. This act shall take effect immediately.
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