Alters the statute of limitations for medical, dental or podiatric malpractice

Summary of provisions of bill

Amends Section 214-a of the Civil Practice Law and Rules to include a "discovery of injury rule" for medical, dental or podiatric malpractice.

Justification

New York's current statute of limitations as to medical malpractice is two and one half years from the date of the act, omission or failure complained of or last treatment where there is continuous treatment. It is not only the shortest negligence statute in the State of New York, except for claims against municipalities, but works undue hardship in its application and interpretation.

The courts in this State have consistently interpreted the accrual of a cause of action for negligence as occurring at the time the act complained of occurred. In medical malpractice cases, arising out of a misdiagnosis or the failure to diagnose, the injury suffered by the victim of such a tort is often not known and is not discovered until the statute of limitation has run.

Most often this injustice is seen in the cancer cases. A patient is seen by a physician for rather general complaints and a series of tests are ordered, including an x-ray. The patient is diagnosed as having no illness. Several years later the patient is diagnosed as having a spot on the lung by a different physician. Review of the original x-ray films show the presence of the spot on the earlier film. Time is of the essence in the treatment of cancer if one is to get a favorable chance at long term survival. If more than two and one half years have passed from the date of the original x-ray and there has been no continuous course of treatment, such as in the case of a radiologist, the patient's claim is time barred, despite the fact that he or she could not have known that he or she was injured.

In the current climate of breast implant litigation, an equally grave injustice is being thrust upon women in New York State. Under the current state of the law the victims of breast implantation can bring an action against the device manufacturers but not sue the physicians and surgeons if more than two and a half years has passed from the date

of the last treatment for the implant, despite the fact that the surgeon bears some degree of responsibility to the breast implant recipients. The proposed legislation cures this injustice.

The current statute of limitations is based upon an archaic rule that a cause of action sounding in negligence accrues at the time of the negligent act. The better rule and the one most widely adopted in other jurisdictions, such as New Jersey, North Carolina, and claims against the United States of America arising under the Federal Tort Claims Act, is one which recognizes that some injuries do not manifest themselves at the time of the negligent act, and which permits a victim of medical malpractice to discover his or her injury before their statutory period to begin suit runs. New York has dealt with this problem in the field of Toxic Torts. In 1986 the Legislature enacted CPLR Section 214-c. That section set forth a discovery rule for injuries suffered as a result of exposure and implantation (1992 amendment) of foreign substances. The justification for the passage of 214-c was that individuals who were exposed to toxic substances did not show any a~verse health effects until after the three (3) year general negligence statute of limitations had run. The issue was revisited in 1992 when that act was amended to include implantation within "exposure" to remedy an injustice to victims of breast implants.

The New York State Trial Lawyers Association strongly supports the proposed amendment of the statute of limitations as it applies to accrual of medical malpractice actions.

Legislative history

2007 - A.6416 - Rules Report #732 2005 - A.5946/S.962-A - Codes Committee/S. Rules Committee 2006 - S.962 - Referred to Codes 2005 - S.962 - Referred to Codes

Fiscal implications

None.

Effective date

Immediately.