Statute of Limitations – Proposed Changes

Current Statute of Limitations Law in NY

Statute of Limitations - ImageAlthough this blog relates to the Statute of Limitations in New York, you may find some interesting points to refer back to in your own state’s law. The examples and potential “ramifications” listed below might also serve as advanced-warnings or early indicators of how similar legislation might impact the medical community in your state.

The Statute of Limitations sets a timeline for which medical malpractice claims must be filed. In New York, for example, the current Statute of Limitations (found in NY CPLR § 214-a : NY Code – Section 214-A) states the following:

“An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; provided, however, that where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. For the purpose of this section the term “continuous treatment” shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient’s condition. For the purpose of this section the term “foreign object” shall not include a chemical compound, fixation device or prosthetic aid or device.”
 

Proposed Amendment to Statute of Limitations

An amendment to New York CPLR 214-a was recently proposed, and fortunately for New York physicians, it never reached a vote and has been put on hold by its sponsors – at least for now.  The proposed amendment of CPLR 214-a would have been, of course, problematic for physicians, because it would “toll” (extend) the Statute of Limitations for a medical malpractice claim in a similar manner to toxic tort claims under CPLR 214-c (which deals with exposure to toxic substances and implantations such as breast implants). The proposal would have permitted filing of an action sounding in medical malpractice within 2 1/2 years of the end of a course of continuous treatment OR when the person knows, or reasonably should have known, of the negligent act or omission, whichever is LATER. Of course, this begs the question: What does reasonably should have known mean? The answer would require analysis by the Court in the context of a defendant’s Summary Judgment motion.
 

Examples

One example is the case of a failure to identify a tumor in a radiology report (e.g., x-ray, MRI, CT scan) which the patient does not learn about until the passage of say 2 1/2 years from the date of the study. In that case, the Statute of Limitations would not run until 5 years from the date of the radiology study in question.

Another example would be a physician’s failure to prescribe a standard of care medication for a particular condition on 1/1/13 and the patient subsequently learns on 7/1/15 (via being told by a different doctor or perhaps, reading about it in the NY Times or hearing about it on a TV talk show like “The Doctors”) that he will have to undergo an amputation due to a disease process or is terminally ill as a consequence of the failure to prescribe the medication. Again, the medical malpractice cause of action would not accrue until 7/1/15 (the date of discovery) and the Statute of Limitations would not expire until 1/1/18.
 

Ramifications of Changes

Clearly, if passed, the amendment to 214-a would have impacted the potential period of a physician’s exposure to suit and the coverage choices that ensue therefrom.  Because of the extended risk exposure, this ruling would have led to dramatic malpractice insurance increases for New York Physicians.  Although the amendment is tabled for now, we are concerned that it will resurface next year. We will continue to watch for any changes in this Statute of Limitations amendment and will keep you informed should they have any effect on your medical malpractice insurance premiums.

We are providing this information so that you are aware of some potential changes that can occur within your state’s Statute of Limitations.

We are grateful to Howard M. Merkrebs, Esq., partner in Rivkin Radler LLP’s Medical Malpractice Litigation Group, who provided information concerning the New York State statute of limitations for medical malpractice claims and the proposed amendment.

The content is for informational purposes only. All matters must be analyzed on a case by case basis.

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