STATE OF NEW YORK
________________________________________________________________________
7588--A
IN SENATE
January 26, 2018
___________
Introduced by Sen. DeFRANCISCO -- read twice and ordered printed, and
when printed to be committed to the Committee on Rules -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the civil practice law and rules, in relation to certain
negligent actions or claims; to amend a chapter of the laws of 2017,
amending the civil practice law and rules relating to accrual of caus-
es of action for medical, dental and podiatric malpractice, as
proposed in legislative bills numbers S. 6800 and A. 8516, in relation
to the effectiveness thereof; to repeal certain provisions of a chap-
ter of the laws of 2017, amending the civil practice law and rules
relating to accrual of causes of action for medical, dental and podia-
tric malpractice, as proposed in legislative bills numbers S. 6800 and
A. 8516, relating to certain negligent acts or omissions; and to
repeal certain provisions of the civil practice law and rules relating
thereto
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Paragraph 2 of subdivision (g) of section 203 of the civil
2 practice law and rules, as added by a chapter of the laws of 2017,
3 amending the civil practice law and rules relating to accrual of causes
4 of action for medical, dental and podiatric malpractice, as proposed in
5 legislative bills numbers S.6800 and A.8516, is REPEALED and a new para-
6 graph 2 is added to read as follows:
7 2. Notwithstanding paragraph one of this subdivision, in an action or
8 claim for medical, dental or podiatric malpractice, where the action or
9 claim is based upon the alleged negligent failure to diagnose cancer or
10 a malignant tumor, whether by act or omission, for the purposes of
11 sections fifty-e and fifty-i of the general municipal law, section ten
12 of the court of claims act, and the provisions of any other law pertain-
13 ing to the commencement of an action or special proceeding, or to the
14 serving of a notice of claim as a condition precedent to commencement of
15 an action or special proceeding within a specified time period, the time
16 in which to commence an action or special proceeding or to serve a
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14476-05-8
S. 7588--A 2
1 notice of claim shall not begin to run until the later of either (i)
2 when the person knows or reasonably should have known of such alleged
3 negligent act or omission and knows or reasonably should have known that
4 such alleged negligent act or omission has caused injury, provided, that
5 such action shall be commenced no later than seven years from such
6 alleged negligent act or omission, or (ii) the date of the last treat-
7 ment where there is continuous treatment for such injury, illness or
8 condition.
9 § 2. Section 214-a of the civil practice law and rules, as amended by
10 a chapter of the laws of 2017, amending the civil practice law and rules
11 relating to accrual of causes of action for medical, dental and podia-
12 tric malpractice, as proposed in legislative bills numbers S.6800 and
13 A.8516, is amended to read as follows:
14 § 214-a. Action for medical, dental or podiatric malpractice to be
15 commenced within two years and six months; exceptions. An action for
16 medical, dental or podiatric malpractice must be commenced within two
17 years and six months of the [accrual of any such action. The accrual of
18 an action occurs at the later of either (a) when one knows or reasonably
19 should have known of the alleged negligent failure to diagnose a malig-
20 nant tumor or cancer, whether by act or omission and knows or reasonably
21 should have known that such negligent act or omission has caused the
22 injury; or (b) the date of the last treatment where there is continuous
23 treatment for the same illness, injury or condition which gave rise to
24 the accrual of an action. However, such action shall commence no later
25 than seven years from the] act, omission or failure complained of or
26 last treatment where there is continuous treatment for the same illness,
27 injury or condition which gave rise to the said act, omission or fail-
28 ure; provided, however, that: (a) where the action is based upon the
29 discovery of a foreign object in the body of the patient, the action may
30 be commenced within one year of the date of such discovery or of the
31 date of discovery of facts which would reasonably lead to such discov-
32 ery, whichever is earlier; and (b) where the action is based upon the
33 alleged negligent failure to diagnose cancer or a malignant tumor,
34 whether by act or omission, the action may be commenced within two years
35 and six months of the later of either (i) when the person knows or
36 reasonably should have known of such alleged negligent act or omission
37 and knows or reasonably should have known that such alleged negligent
38 act or omission has caused injury, provided, that such action shall be
39 commenced no later than seven years from such alleged negligent act or
40 omission, or (ii) the date of the last treatment where there is contin-
41 uous treatment for such injury, illness or condition. For the purpose
42 of this section the term "continuous treatment" shall not include exam-
43 inations undertaken at the request of the patient for the sole purpose
44 of ascertaining the state of the patient's condition. For the purpose of
45 this section the term "foreign object" shall not include a chemical
46 compound, fixation device or prosthetic aid or device.
47 § 3. Section 3 of a chapter of the laws of 2017, amending the civil
48 practice law and rules relating to accrual of causes of action for
49 medical, dental and podiatric malpractice, as proposed in legislative
50 bills numbers S.6800 and A.8516, is REPEALED.
51 § 4. Notwithstanding sections 50-e and 50-i of the general municipal
52 law, section 10 of the court of claims act, and the provisions of any
53 other law pertaining to the commencement of an action or special
54 proceeding, or to the serving of a notice of claim as a condition prece-
55 dent to commencement of an action or special proceeding within a speci-
56 fied time period, with regard to any action or claim arising from
S. 7588--A 3
1 alleged medical malpractice based upon an alleged negligent failure to
2 diagnose cancer or a malignant tumor, whether by act or omission, which,
3 within ten months prior to the effective date of the act that created
4 this section, became time-barred under any applicable limitations period
5 then in effect, such action or claim may be commenced within six months
6 of the effective date of the act that created this section, and not
7 beyond. The provisions added by section one and amended by section two
8 of the act that created this section shall not apply to such actions.
9 § 5. Section 4 of a chapter of the laws of 2017, amending the civil
10 practice law and rules relating to accrual of causes of action for
11 medical, dental and podiatric malpractice, as proposed in legislative
12 bills numbers S.6800 and A.8516, is amended to read as follows:
13 § 4. This act shall take effect immediately and shall apply to acts,
14 omissions, or failures occurring on or after such effective date.
15 § 6. This act shall take effect immediately; provided, however, that
16 sections one, two and three of this act shall take effect on the same
17 date and in the same manner as a chapter of the laws of 2017, amending
18 the civil practice law and rules relating to accrual of causes of action
19 for medical, dental and podiatric malpractice, as proposed in legisla-
20 tive bills numbers S.6800 and A.8516, takes effect provided, further,
21 that the provisions added by section one of this act shall also apply to
22 acts, omissions, or failures occurring within 1 year and 90 days prior
23 to the effective date of this act, and not before, and further provided,
24 however, that for actions or claims governed by section 10 of the court
25 of claims act such section one shall also apply to acts, omissions, or
26 failures occurring within 2 years prior to the effective date of this
27 act, and not before; provided, further, that the provisions amended by
28 section two of this act shall also apply to acts, omissions, or failures
29 occurring within 2 years and 6 months prior to the effective date of
30 this act, and not before.