A932   Luster (MS)   No Same as
Civil Practice Law and Rules
TITLE....Establishes statute of limitations for medical, dental or podiatric malpractice action at 1 year after the discovery of a condition which should have been discovered
 

LUSTER, CLARK, LOPEZ; M-S: Gottfried, Greene, Hikind, John, Lavelle, McEneny, Millman, Seddio, Weinstein
Amd S214-a, CPLR
Establishes the statute of limitations for medical, dental or podiatric malpractice actions at 1 year after the discovery of an illness, injury or condition which should have been diagnosed earlier but for the failure of a health care practitioner, or the failure to accurately report or communicate the results of clinical diagnostic laboratory or radiological tests; provides for the limited revival of certain time-barred causes of action thereof.

 
                STATE OF NEW YORK
       ________________________________________________________________________
 
                                          932
 
                              2001-2002 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 9, 2001
                                      ___________
 
       Introduced  by M. of A. LUSTER, CLARK, LOPEZ -- Multi-Sponsored by -- M.
         of A. GOTTFRIED,  GREENE,  HIKIND,  HOOPER,  JOHN,  McENENY,  MILLMAN,
         SEDDIO, WEINSTEIN -- read once and referred to the Committee on Codes
 
       AN  ACT  to  amend  the civil practice law and rules, in relation to the
         statute of limitations for actions for medical,  dental  or  podiatric
         malpractice
 
         The  People of the State of New York, represented in Senate and Assem-
       bly, do enact as follows:
 
    1    Section 1. Section 214-a of the  civil  practice  law  and  rules,  as
    2  amended  by  chapter  485  of  the  laws  of 1986, is amended to read as
    3  follows:
    4    § 214-a. Action for medical, dental or  podiatric  malpractice  to  be
    5  commenced  within  two  years  and six months; exceptions. An action for
    6  medical, dental or podiatric malpractice must be  commenced  within  two
    7  years  and  six  months of the act, omission or failure complained of or
    8  last treatment where there is continuous treatment for the same illness,
    9  injury or condition which gave rise to the said act, omission  or  fail-
   10  ure;  provided, however, that where the action is based upon the discov-
   11  ery of a foreign object in the body of the patient, the  action  may  be
   12  commenced  within  one year of the date of such discovery or of the date
   13  of discovery of facts which would reasonably  lead  to  such  discovery,
   14  whichever  is earlier.  Where the action is based on the discovery of an
   15  illness, injury or condition the existence of  which  should  have  been
   16  detected, but due to the act, omission or failure of a health care prac-
   17  titioner  such illness, injury or condition was not detected in clinical
   18  diagnostic laboratory or radiological tests actually  performed,  or  if
   19  the results of such clinical diagnostic laboratory or radiological tests
   20  actually  performed  were  not  accurately reported or communicated, 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
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD01524-01-1

       A. 932                              2
 
    1  term "continuous treatment" shall not include examinations undertaken at
    2  the request of the patient for the  sole  purpose  of  ascertaining  the
    3  state  of  the  patient's condition. For the purpose of this section the
    4  term  "foreign  object"  shall not include a chemical compound, fixation
    5  device or prosthetic aid or device.
    6    § 2. Every cause of action for an injury or death based on the discov-
    7  ery of an illness, injury or condition the  existence  of  which  should
    8  have  been detected, but due to the act, omission or failure of a health
    9  care practitioner such illness, injury or condition was not detected  in
   10  clinical diagnostic laboratory or radiological tests actually performed,
   11  which  is  or  would  be barred prior to the effective date of this act,
   12  because the applicable  period  of  limitation  has  expired  is  hereby
   13  revived and extended, and any action thereon may be commenced and prose-
   14  cuted  provided  such  action is commenced not later than one year after
   15  the effective date of this act.
   16    § 3. This act shall take effect immediately.

 
BILL NUMBER: A932                        Revised
 
SPONSOR: Luster (MS)

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the statute of limitations for actions for medical, dental
or podiatric malpractice
 
 
PURPOSE OR GENERAL IDEA OF BILL:  Under certain circumstances, estab-
lishes statute of limitations for medical, dental or podiatric malprac-
tice action at 1 year after the discovery of a condition which should
have been discovered by clinical diagnostic laboratory or radiological
tests actually performed and either was not discovered or, if discov-
ered, was not accurately reported.
 
 
SUMMARY OF PROVISIONS:  Section 1 Amends CPLR § 214-a by permitting an
action for medical, dental or podiatric malpractice to be commenced
within one year from the date of discovery of an illness, injury, or
condition which, in cases where clinical diagnostic laboratory or radio-
logical tests have been performed and documented, either 1) should have
been discovered but was not, or 2) was discovered but inaccurately
reported or communicated. The date of discovery is defined as the earli-
er of two dates, either 1) the date of actual discovery, or 2) the date
when available facts would have reasonably lead to discovery.
 
Section 2) Revives and extends for one year the time for filing claims
that were previously time barred but would not have been under this act.
 
 
JUSTIFICATION:  Causes of action in medical, dental and podiatric
malpractice cases arising from misdiagnoses have frequently been
dismissed due to the period of time the injury, illness or condition
requires to be noticed after a misdiagnosis is made.
 
The inability of an injured party to seek compensation for a misdiagno-
sis is far from academic. A constituent of Assemblyman Luster's district
had a small skin lesion biopsied several years ago. The lab reported
that the lesion was benign. In reliance on the report, the lesion was
removed and treated as benign. Several years later, a lump recurred in
that area. A re-examination of the original test results revealed that
the earlier laboratory findings were erroneous. The period of time the
lesion was left untreated has resulted in a terminal illness. However,
that same period of time exceeds the two and one-half year window within
which she could file a medical malpractice claim.
 
This legislation would prevent these injustices from recurring.
 
 
PRIOR LEGISLATIVE HISTORY:  A.9143A passed Assembly
 
A.1724a referred to Codes
 
 
FISCAL IMPLICATIONS:  None.
 
 
EFFECTIVE DATE:  Immediately.