Establishes a cause of action for medical monitoring for a person with or without a present injury or disease; establishes a statute of limitation for such cause of action.
STATE OF NEW YORK
________________________________________________________________________
528
2023-2024 Regular Sessions
IN SENATE
January 4, 2023
___________
Introduced by Sens. THOMAS, MAY -- read twice and ordered printed, and
when printed to be committed to the Committee on Environmental Conser-
vation
AN ACT to amend the environmental conservation law and the civil prac-
tice law and rules, in relation to establishing a cause of action for
medical monitoring
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The environmental conservation law is amended by adding a
2 new section 37-0116 to read as follows:
3 § 37-0116. Cause of action for medical monitoring.
4 1. For the purpose of this section, the following terms shall have the
5 following meanings:
6 (a) "exposure" shall have the same meaning set forth in section two
7 hundred fourteen-c of the civil practice law and rules.
8 (b) "toxic substance" shall mean:
9 (i) any chemical or biological substance that poses a risk to human
10 health as defined by the commissioner pursuant to section 37-0103 of
11 this title;
12 (ii) any substance categorized as toxic or hazardous by the United
13 States environmental protection agency or the United States agency for
14 toxic substance and disease registry shall be a hazardous or toxic
15 substance; and
16 (iii) any substance not so characterized may be proven to be toxic by
17 a preponderance of the evidence.
18 (c) "release" shall mean any intentional or unintentional, permitted
19 or unpermitted, act or omission that allows a toxic substance to enter
20 the air, land, surface water, groundwater, or any other place where the
21 toxic substance may be located.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01858-01-3
S. 528 2
1 (d) "medical monitoring" shall mean a program of medical surveillance,
2 including medical tests or procedures for the purpose of early detection
3 of signs or symptoms of latent disease resulting from exposure.
4 (e) "latent disease" shall mean any condition that negatively affects
5 human health by causing death or permanent or protracted loss of mental
6 or physical function which a person has a significantly increased risk
7 of contracting.
8 (f) "reasonably necessary" shall mean the standard whereby a physician
9 would prescribe testing for the purpose of detecting or monitoring the
10 latent disease.
11 (g) "person" shall mean an individual, firm, corporation, association,
12 partnership, consortium, joint venture, commercial entity, federal
13 government, state, municipality, commission, political subdivision, or
14 any interstate body.
15 2. A person with or without a present injury or disease shall have a
16 cause of action for medical monitoring damages against a person who
17 released a toxic substance if all of the following are demonstrated by a
18 preponderance of the evidence:
19 (a) the person may have been exposed to the toxic substance as a
20 result of the unauthorized release by the person who released the toxic
21 substance;
22 (b) there is a probable link between exposure to the toxic substance
23 and a latent disease;
24 (c) the person's exposure to the toxic substance increases the risk of
25 developing the latent disease, provided that such person shall not be
26 required to prove that the latent disease is certain or likely to devel-
27 op as a result of the exposure;
28 (d) diagnostic testing is reasonably necessary; and
29 (e) medical tests or procedures exist to detect the latent disease.
30 3. Nothing in this section shall be construed to preclude the pursuit
31 of any other civil or injunctive remedy available under statute or
32 common law, including the right of any person to recover for damages
33 related to the manifestation of a latent disease. The remedies in this
34 section are in addition to those provided by existing statutory or
35 common law.
36 4. This section does not preclude a court from certifying a class
37 action for medical monitoring damages.
38 § 2. The civil practice law and rules is amended by adding a new
39 section 214-k to read as follows:
40 § 214-k. Cause of action for medical monitoring. Notwithstanding any
41 provision of law to the contrary, a cause of action for medical monitor-
42 ing pursuant to section 37-0116 of the environmental conservation law,
43 may be commenced by the plaintiff within the period allowed pursuant to
44 section two hundred fourteen-c of this article or within one year of the
45 effective date of this section.
46 § 3. This act shall take effect immediately.
