January 21, 2019 • Medical Malpractice
On January 31st, 2018, New York passed Lavern’s Law – a law that will change the statute of limitations on some medical malpractice cases. Lavern’s Law is named for Lavern Wilkinson, who passed away at age 41 from a treatable form of lung cancer because of a misdiagnosis. Governor Andrew Cuomo, who signed the bill into law, said he was proud to sign legislation that rights a wrong in the law, and that provides new protections and peace of mind to New Yorkers.
Lavern’s Law changes New York’s medical malpractice statute of limitations in cancer cases. The statute of limitations is the deadline by which all claimants must file before the courts will refuse to hear a case. Prior to the passing of Lavern’s Law, claimants in New York had 30 months (or 2.5 years) from the date of the alleged malpractice that caused the injury. That means 2.5 years from the date of the defendant’s negligent action or omission, regardless of when the patient actually discovered the malpractice.
Thanks to Lavern’s Law, patients with cancer now qualify for a new discovery rule within New York’s medical malpractice statute of limitations. Rather than having 2.5 years from the date of malpractice, cancer patients have 2.5 years from the date they discover their injuries or the act of malpractice. The law means New York will join dozens of other states that already had discovery rules in place for medical malpractice claims involving the delayed discoveries of injuries or illnesses.
This significant change in New York’s medical malpractice law came about because of one woman: single mother and church librarian, Lavern Wilkinson. Wilkinson died prematurely of a treatable form of lung cancer because her diagnosis came two years later than it reasonably should have. Grossly negligent physicians at the Kings County Hospital failed to diagnose her with lung cancer in 2013.
It was not until Wilkinson began showing signs of late-stage lung cancer, in 2015, that she finally received a lung cancer diagnosis. At this point, her cancer had sadly progressed to the point of being terminal. Wilkinson filed a medical malpractice claim as soon as she discovered she had lung cancer, hoping to obtain compensation to ensure the financial future of her then-15-year-old daughter, who had autism and developmental delays and required around-the-clock care. The courts refused to hear Wilkinson’s case because it had been more than 30 months since the failure to diagnose.
Lavern’s Law did not happen overnight. In fact, the law did not initially come up for vote despite more than 60% of senator support because of Republican state Senate leader, John Flanagan. The Assembly passed the law and Gov. Cuomo pledged he would sign it, but the bill became a dead letter when Mr. Flanagan refused to let it get to the floor, partially because of bill opposition from the Greater New York Hospital Association. John DeFrancisco, the Senate’s No. 2, filed a motion for the full chamber to consider the bill.
An amended version of the original legislation finally passed into law in January 2018. The law now states that victims can commence actions for medical, dental, or podiatric malpractice within two years and six months of the accrual of any such action. An accrual occurs either when someone knows or reasonably should know of the failure to diagnose a malignant tumor or cancer, or the date of the last treatment for such a condition. Victims have no later than seven years from the date of the malpractice to file (the statute of repose).
Cancer victims like Lavern Wilkinson will now have more time to file medical malpractice lawsuits in New York. They will have 30 months from the date of injury or discovery of the injury, whichever comes first. If you have a medical malpractice cancer claim, do not assume the deadline to file has passed. Speak to a New York City medical malpractice lawyer for specific information about the time limit under Lavern’s Law.