S T A T E O F N E W Y O R K
________________________________________________________________________
1585
1999-2000 Regular Sessions
I N S E N A T E
January 26, 1999
___________
Introduced by Sen. SEWARD -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the civil practice law and rules, in relation to the
statute of limitations and limiting noneconomic damages 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 S 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 TESTS OR
18 DIAGNOSTIC PROCEDURES ACTUALLY PERFORMED, OR IF THE RESULTS OF SUCH
19 TESTS OR DIAGNOSTIC PROCEDURES ACTUALLY PERFORMED WERE NOT ACCURATELY
20 REPORTED OR COMMUNICATED, THE ACTION MAY BE COMMENCED WITHIN ONE YEAR OF
21 THE DATE OF SUCH DISCOVERY OR OF THE DATE OF DISCOVERY OF FACTS WHICH
22 WOULD REASONABLY LEAD TO SUCH DISCOVERY, WHICHEVER IS EARLIER; PROVIDED,
23 HOWEVER, THAT SUCH LIMITATION SHALL NOT APPLY TO AN ACT, OMISSION OR
24 FAILURE TO DIRECT THAT ANY TEST OR DIAGNOSTIC PROCEDURE BE PERFORMED.
25 For the purpose of this section the term "continuous treatment" shall
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD03737-01-9
S. 1585 2
1 not include examinations undertaken at the request of the patient for
2 the sole purpose of ascertaining the state of the patient`s condition.
3 For the purpose of this section the term "foreign object" shall not
4 include a chemical compound, fixation device or prosthetic aid or
5 device.
6 S 2. The civil practice law and rules is amended by adding a new arti-
7 cle 50-C to read as follows:
8 ARTICLE 50-C
9 LIMITATION ON NONECONOMIC DAMAGES; MEDICAL, DENTAL AND PODIATRIC
10 MALPRACTICE
11 SECTION 5051. DEFINITIONS.
12 5052. DAMAGE AWARDS.
13 S 5051. DEFINITIONS. AS USED IN THIS ARTICLE:
14 1. "NONECONOMIC DAMAGES" MEANS SUBJECTIVE, NONPECUNIARY DAMAGES ARIS-
15 ING FROM PAIN, SUFFERING, INCONVENIENCE, PHYSICAL IMPAIRMENT OR DISFIG-
16 UREMENT, MENTAL ANGUISH, EMOTIONAL DISTRESS, LOSS OF SOCIETY AND COMPAN-
17 IONSHIP, LOSS OF CONSORTIUM, INJURY TO REPUTATION, HUMILIATION AND OTHER
18 NONPECUNIARY DAMAGES.
19 2. "ACTUAL ECONOMIC DAMAGES" MEANS OBJECTIVELY VERIFIABLE PECUNIARY
20 DAMAGES ARISING FROM MEDICAL EXPENSES AND MEDICAL CARE, LOSS OF EARNINGS
21 AND EARNING CAPACITY, BURIAL COSTS, LOSS OF USE OF PROPERTY, COSTS OF
22 REPAIR OR REPLACEMENT OF PROPERTY, COSTS OF OBTAINING SUBSTITUTE DOMES-
23 TIC SERVICES, LOSS OF EMPLOYMENT, LOSS OF BUSINESS OR EMPLOYMENT OPPOR-
24 TUNITIES, REHABILITATION SERVICES, CUSTODIAL CARE AND OTHER PECUNIARY
25 DAMAGES.
26 3. "PERSONAL INJURY ACTION" MEANS ANY MEDICAL, DENTAL AND PODIATRIC
27 MALPRACTICE ACTION IN WHICH THE PLAINTIFF SEEKS DAMAGES FOR INJURY TO
28 THE PERSON OR WRONGFUL DEATH.
29 4. "COMPENSATION" MEANS MONETARY AWARDS.
30 S 5052. DAMAGE AWARDS. IN ANY PERSONAL INJURY ACTION, THE PREVAILING
31 PLAINTIFF MAY BE AWARDED:
32 1. COMPENSATION FOR ACTUAL ECONOMIC DAMAGES SUFFERED BY THE INJURED
33 PLAINTIFF; AND
34 2. COMPENSATION FOR NONECONOMIC DAMAGES SUFFERED BY THE INJURED PLAIN-
35 TIFF, NOT TO EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS.
36 S 3. Every cause of action for an injury or death based on the discov-
37 ery of an illness, injury or condition the existence of which should
38 have been detected, but due to the act, omission or failure of a health
39 care practitioner such illness, injury or condition was not detected in
40 tests or diagnostic procedures actually performed, which is or would be
41 barred prior to the effective date of this act, because the applicable
42 period of limitation has expired is hereby revived and extended, and any
43 action thereon may be commenced and prosecuted provided such action is
44 commenced not later than one year after the effective date of this act.
45 S 4. This act shall take effect immediately and shall apply to causes
46 of action commenced on or after such date.
.SO DOC S 1585 *END* BTXT 1999
Bill S01585
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