S T A T E   O F   N E W   Y O R K
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                                      5344
                           1997-1998 Regular Sessions
                              I N  A S S E M B L Y
                                  March 3, 1997
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    Introduced  by  M.  of  A.  WEINSTEIN  --  read once and referred to the
      Committee on Codes
    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; and providing for one year  revival  of
      previously dismissed actions
      The  People of the State of New York, represented in Senate and Assem-
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    bly, do enact as follows:
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 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.  For the purpose of this section the term "contin-
15  uous treatment" shall not include examinations undertaken at the request
16  of  the  patient  for  the sole purpose of ascertaining the state of the
17  patient's condition.  For the purpose of this section the term  "foreign
18  object"  shall not include a chemical compound, fixation device or pros-
19  thetic aid or device] accrual of any such action. For purposes  of  this
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20  section, accrual of an action occurs when one knows or should have known
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21  of  the alleged negligent act or omission and knows or should have known
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22  that said negligent act has caused an injury; or, within two  years  and
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23  six months of the last treatment where there is continuous treatment for
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     EXPLANATION--Matter in italics (underscored) is new; matter in brackets
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                          [ ] is old law to be omitted.
                                                               LBD00074-01-7
    A. 5344                             2
 1  the  same illness, injury or condition which gave rise to the accrual of
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 2  an action.
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 3      2.  Every  action for personal injury or death sounding in medical,
 4  dental or podiatric malpractice, which is barred  as  of  the  effective
 5  date  of  this act or which was dismissed prior to the effective date of
 6  this act solely because the applicable period of limitations has or  had
 7  expired,  is  hereby  revived  and  an  action  thereon may be commenced
 8  provided such action is commenced within one  year  from  the  effective
 9  date  of  this act; provided however, that this section shall not revive
10  any action for damages for a wrongful act, neglect or default causing  a
11  decedent's  death  and could have been brought pursuant to section 5-4.1
12  of the estates, powers and trusts law, and provided, further,  that  for
13  any revived claim or action, including third party claims and claims for
14  contribution  pursuant to article 14 of the civil practice law and rules
15  for which a notice of claim is or would have been required by law  as  a
16  condition  precedent to the claim or action, a notice of claim shall not
17  be required.
18     3. This act shall take effect immediately.