National Cancer Survivors’ Day was recently celebrated on June 4 to celebrate those who have survived, those who are currently battling cancer and their families/communities. With a prompt diagnosis the odds for survival are much higher than in the past.
A delay in diagnosis, on the other hand, can allow the disease to spread to the point that treatment options are no longer available. When a radiologist or other physician notices something suspicious but fails to follow up on it, a malpractice claim may provide a remedy. But strict deadlines apply for New York families. Lavern’s law proposes to extend the time allowed to bring a claim.
How long depends
In New York, the statute of limitation for bringing a claim is two and a half years from the malpractice. But if a physician provides continuous treatment for the condition related to the malpractice, this time does not start to run until the end of the course of treatment. The time frame is shorter if treated at a municipal hospital – a notice of claim must be filed within 90 days and the lawsuit needs to start within one year.
In many other states, the time limits begin when an injured patient finds out about the damage. This provides some time to investigate and consider whether to move forward with a claim.
Why is a change needed? Many people do not find out about a medical misdiagnosis, delay on diagnosis or other error until it is too late to seek a remedy.
This is what happened to the family of Lavern Wilkinson. Her radiologist never told her about a suspicious mass. Two years later when a chronic cough developed, she learned she had terminal cancer. If the mass had been immediately addressed, her cancer would have been treatable.
Because radiologists do not treat, the limitations period is two and a half years after a misdiagnosis even if the patient had no way of knowing about the malpractice within that time. Her family was left without any means of seeking justice, because of the timing.
Progress or lack of thereof
With any legislation the process to become law can take a long time. While the New York Assembly passed the last year and Gov. Andrew Cuomo has said he will sign it, the State Senate has not taken action.
The proposed legislation is in a wait state. In this situation, if you fear a mistake or omission was related to a misdiagnosis or delay in diagnosis, you need to take immediate action to get legal counsel.