REPORT NO. [Preliminary Copy]

AN ACT to amend the civil practice law and rules in relation to extending time limitations for certain actions.

LAW AND SECTION REFERRED TO: CPLR 214-a

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (# )

The statute of limitations in medical malpractice actions resulted from a compromise for the medical profession. Bills S1601 and A5344 would amend CPLR 214-a by eliminating the current exceptions and replacing them with a rule that claims accrue when the plaintiff knows or should know of the alleged negligent act or omission and when such act or omission caused injury and within 2½ years after the last treatment where, if proven, there has been continuous treatment.

These bills also provide that all actions that had been dismissed on statute of limitations grounds would be revived if they were re-commenced within one year of the effective date of the amendment to CPLR 214-a; no wrongful death causes of action would be revived. The last part of the "revival" section indicates that if a notice of claim had been necessary before, it will not be required to revive the dismissed action. These bills would take effect immediately. The Committee was unanimous in rejecting the revival section of these bills.

Bill A9143 provides that where a malpractice action is based on an illness or condition that should have been detected by a test that was performed, an action must be commenced within one year of either, when the condition is discovered, or the discovery of facts which should reasonably lead to the discovery. A9143 provides that it takes effect immediately, but that it should only apply to actions commenced on or after the effective date. (This would appear to foreclose any claims of retroactivity of this Bill as we have seen with the amendment to the Workers' Compensation Law.)

There has been a considerable amount of debate by this Committee as to whether to approve or disapprove the last bill, A. 9143. In support of a "discovery rule" for failure to diagnose cases, it has been argued that there is a distinction to be made between the failure to diagnosis cases and other forms of malpractice. There is the opinion that the "continuous treatment" doctrine has brought about a great deal of unjust results where plaintiffs have argued "continuous misdiagnosis." It is well settled law that the failure to institute treatment does not come under the "continuous treatment" doctrine. See, Nykorchuck V. Henriques, 78 N.Y.2d 255 (1991); Johansen V. Ozer, 223 A.D.2d 412 (1^st Dept., 1996). The supporters of this bill argue that because injuries in failure to diagnose cases may not manifest themselves for a long period of time, this is the paradigm situation for a discovery rule.

On the other hand, the bills allow for the commencement of actions long after the underlying event has occurred, and undermines the policy of reposed embodied in the statute of limitations As the Court of Appeals explained, a discovery rule in a failure to diagnose situation would extend an exception "to cover a relationship over 15 years, and conceivably for the remainder of the patient's life, when there was no treatment to continue and the plaintiff would jeopardize nothing by instituting suit at any time if [he/]she believed defendant guilty of malpractice." Massie v. Crawford, 78 N.Y.2d 516 (1991). Clearly, a patient has the ability to change medical providers, seek follow up care or institute suit at will.

Furthermore, there is no evidence that a broader discovery rule is required in medical malpractice actions. To the contrary, important policy issues that lead to the shorten statute in CPLR 214-a militate against such an expansion.

The Committee is divided on the wisdom of the bills, but on balance, believes that they undermine the statutory policy of repose. A majority of the committee disapproves on that ground.

The Committee unanimously disapproves of the revival sections of S. 1601 and A. 5344. The sweep of these revival sections is exceedingly broad. Section 2 of S. 1601 and A. 5344 would revive suits without regard to when they were dismissed and regardless of whether the plaintiff who had been dismissed had knowledge of the injury before the former statute of limitations period had run. There is no reason for a revival section in this legislation, and the revival section proposed is unreasonably overbroad. The revival section in A. 9143 is more narrowly drawn, reviving only actions where the illness or injury should have been detected by a test or diagnostic procedure actually performed, but it is still exceedingly broad. There is no time limit when the suit had to be dismissed, thus potentially reviving suits that had been dismissed for many years earlier.

For the foregoing reasons, these Bills are disapproved.

Person who prepared the report: Matthew R. Kreinces, Esq.

Chair of the Committee: Paul H. Aloe, Esq.