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Hofstra Law Review

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Abstract

Traditionally, the period within which medical malpractice actions had to be commenced was computed from the time of the negligent act. In 1962 and 1969, the New York State Court of Appeals added new rules to avoid the harsh results of a strict application of that "time of the act" standard. These "continuous treatment" and "foreign object discovery" rules were adopted to give the plaintiff more time to discover that he had been treated negligently and, thus, to commence his action.

The traditional time of the act rule was court-made. In the absence of restrictive legislative mandates, the Court of Appeals plainly had the power to change it. However, when the court added the continuous treatment rule in 1962, it clung to the language and concepts of the time of the act rule. This combination of modern theory and old language created new problems. Furthermore, although the court clearly broke with the past when it adopted the foreign object discovery rule in 1969, this rule was both contrary to existing statutes and unnecessarily restricted to foreign objects.

This comment will consider the policy behind the adoption of these new rules, their inherent theoretical failings and their subsequent application by the lower courts

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