More than 60 patient advocacy and rights groups recently signed a letter to Governor Andrew Cuomo, urging him to sign and implement a new law aimed at giving medical malpractice victims the opportunity to seek justice.
Though state lawmakers overwhelmingly approved “Lavern’s Law” in June as we discussed in a previous blog, the governor still hasn’t moved forward.
What is Lavern’s Law?
The tragic death of Lavern Wilkinson inspired legislators to introduce Lavern’s Law. She passed away in 2013 at the age of 41; three years after doctors misdiagnosed what would have otherwise been a potentially curable form of lung cancer. Doctors at New York’s Kings County Hospital failed to act on a mass in her lung seen on an X-ray back in 2010.
Since she discovered the error outside of the limitation period – at a time when her cancer had already spread and was untreatable – she could not, under New York state law, bring a malpractice action. She left behind a developmentally disabled teenage daughter who needed round-the-clock care.
The bill that passed the legislature focused narrowly on cancer patients. These patients would have a 2 1/2 year window to bring an action (from the time a mistake is actually discovered or ought to have been discovered) regardless of whether the error occurred at a state-run facility or a private one. This “date of discovery” law is a departure from current law.
A broader version of this legislation proposed extending the deadline for filing all medical malpractice claims, but extensive lobbying from medical industry groups squashed that. The compromise, focused solely on cancer patients, moved forward as the current Lavern’s Law legislation.
In the meantime
Until Governor Cuomo signs the legislation, the current law caps medical malpractice actions to 2 1/2 years from the last date of continuous treatment by the doctor against whom the suit is brought. In a case against a City hospital it is one year and ninety days. A claim against a state hospital can be brought within 2 years if a notice of intention to file claim was served within 90 days.
Lavern’s Law will level the playing field for patients across the state.
If you have concerns about the treatment you or a loved one received at a New York City or state-run New York hospital or clinic, speak with a medical malpractice attorney. The statute is harsh and can foreclose your ability to bring a claim. Because of this limited time to bring a claim after a misdiagnosis or surgical error, there is no time to delay.