Tap to Call Directions

‘Lavern’s Law’ Would Benefit Delayed Cancer Diagnosis Victims

Posted on August 27, 2015 by Kelly Wolford
patient with cancer

Unfortunately, a bill that would have helped victims of delayed cancer diagnoses in New York State failed to make it to the floor of the state Senate before the last legislative session ended.

But hopefully, this won’t be the end of “Lavern’s Law.”

The bill would have allowed New York State to join the majority of other states in the country that recognize the “discovery rule” in medical malpractice cases.

Right now, New York is among only six states that do not recognize it.

Under current New York law, a medical malpractice lawsuit must be brought within two-and-half years from the date of a medical professional’s alleged negligent act, omission or failure or from the date of last treatment where there has been continuous treatment. This is called the statute of limitations.

However, as the bill states, this rule can lead to “undue hardship in its application and interpretation,” especially in cases that involve the delayed diagnosis of cancer. In many cases, the statute of limitations may have expired by the time a patient learns that his or her cancer had been misdiagnosed years before.

“Lavern’s Law,” on the other hand, would have allowed the statute of limitations to begin running on the date when a patient discovered the negligence or reasonably should have discovered it. (In no case could a patient bring a lawsuit more than 10 years after the date of the alleged medical negligence.)

The New York Daily News reports that the Assembly passed the bill by a 99-23 margin in early June. Additionally, Governor Cuomo indicated that he would sign the bill if it came to his desk. However, facing pressure from the medical lobby, the Senate refused to let it come to the floor for a vote.

However, at least one lawmaker told the Daily News that the bill could resurface in the next session as part of a larger package of reforms.

The Story Behind ‘Lavern’s Law’

The story of the woman for whom the bill has been nicknamed illustrates the problem with New York’s current medical malpractice statute of limitations.

As the Daily News explains, Lavern Wilkinson went to Kings County Hospital in Brooklyn in February 2010. At the time, the doctors failed to tell her that a chest X-ray showed a “small, suspicious mass on her right lung.” It wasn’t until May 2012 that she learned that she had lung cancer.

By the time she was able to pursue a lawsuit that sought a recovery for her pain and suffering as well as for the loss of parental guidance for her 15-year-old mentally handicapped son, the statute of limitations had expired. She died in March 2013.

However, if the discovery rule had been in effect, the statute of limitations in Wilkinson’s case would not have started running until May 2012. Her medical malpractice lawsuit could have been filed through November 2014.

Discovery Rule Simply Promotes Fairness

As many lawmakers who supported “Lavern’s Law” commented to the Daily News, allowing the discovery rule in medical malpractice cases simply makes sense and promotes fairness.

“It’s such a no-brainer. Why would you stop someone from being able to correct a wrong when they find out about it,” one lawmaker told the newspaper.

The unfairness can be especially seen in a case involving the delayed diagnosis of cancer. As our law firm has witnessed first-hand, in too many cases, a patient goes to a doctor and is diagnosed as having a non-cancerous medical condition.

Several years pass before the patient receives an accurate diagnosis. By that point, however, the statute of limitations has already expired.

So, simply because the patient trusted that his or her doctor had made a correct diagnosis the first time, the patient is barred from taking any legal action.

Hopefully, New York lawmakers will take up “Lavern’s Law” again in the next legislative session. If and when they do, it will be up to the public to let lawmakers know they want this bill passed in order to protect patients’ rights and promote fairness in our justice system.