Relates to the time to commence certain medical malpractice actions

Summary of provisions

Section 1 - tolls the statute of limitations in a medical, dental or podiatric malpractice action so that where there is a failure by a hospital to file an incident report as mandated by the public health law, a plaintiff has a year from the date of filing of such report in which to commence an action.

In addition, it tolls the statute limitations in a medical, dental or podiatric malpractice action so that where an action is time-barred against an individual healthcare service provider, an action may still be commenced against a hospital where either the individual or the hospital has failed to file an incident report as mandated by the public health law, a plaintiff has a year from the date of filing of such report in which to commence an action.

Section 2 - requires incident reports submitted to the Department of Health under section 2805-1 of the public health law also be sent to the patient and their representative.

Section 3 provides for a private right of action as a result of injury from a hospital acquired infection and also provides for strict liability against hospitals for medication errors.

Section 4 - Effective Date.

Justification

Despite having been a requirement for over twenty years, there are abundant reports of hospitals failing to file incident reports as mandated by the public health law. These incident reports are required in order to give the Department of Health notice that a significant incident has occurred, such as a patient death under circumstances other than as a result of the course of disease, injury or proper treatment. It also includes situations that harmed patients, such as fires, equipment malfunctions, or poisonings. According to a Harvard study, over 7,000 New Yorkers die each year as a result of preventable medical errors. Clearly, these reports are a significant tool that should be used to prevent the recurrence of harm or death to patients.

Yet by failing to timely file such reports, hospitals are preventing the Department of Health from asserting its authority to make sure the public is adequately protected in the case of substandard patient care of hospital environment.

Furthermore, the law fails to permit notification to those most directly affected by such unfortunate events-the patient themselves, as well as family or others who are designated to help make crucial decisions for the patient. By tolling the statute of limitations on malpractice actions against hospitals, such institutions are incentivized to obey the clear letter of the law. Furthermore, hospitals will not be able to protect themselves from liability for their harmful actions simply by ignoring the law, and thereby further harming the patient in question first by whatever action led to the requirement of filing the incident report, then again by not filing the report, thus preventing the patient or their representative from accessing information that could help them recover damages for death or injury.

With respect to hospital acquired infections, it is widely reported that such infections are commonplace and have hugely inflated the number of injuries and death that would otherwise be preventable but for the lack adherence to modern sanitation standards. Indeed, according to a report by the Committee to Reduce Infection Deaths, "infections contracted in hospitals are the fourth largest killer in America." Despite regulatory and self-policing efforts to overcome this frightening and unnecessary phenomenon, patients still suffer needlessly as a result of such infections.

As with many other public safety issues over the years, one method of assuring that the self interest of the erstwhile wrongdoer is aligned with that of the victim, thus changing their behavior for the public good, is permitting those harmed by the improper behavior to bring suit for damages. By permitting patients to bring action against hospitals for hospital acquired infections, hospitals will be forced to review their sanitary procedures and provide a safer patient environment.

Finally, the matter of medication errors is addressed in the bill as well. Similar to that of hospital-acquired infections, there is no good reason for so many people to be harmed from medication mistakes in this day of modern technology and advanced therapeutic practices available to prevent careless mistakes. As with the problem of infections, by making hospitals strictly liable for harms that are the result of preventable error, such institutions will modify their practices that reduce medication errors and substantially enhance patient safety.

Prior legislative history

2011-12: S.1098A/A.3913 - Referred to Judiciary 2009-10: S.5558 REFERRED TO CODES

Fiscal implications

None.

Effective date

Immediately.