A statute of limitations is a law that limits the time period within which you may sue a person or company. The New York medical malpractice statute imposes a 30-month time limit from the date of the malpractice or from the end of continuous treatment. However, the New York legislature recently passed Lavern’s Law to, among other things, give people who receive a cancer misdiagnosis a more reasonable time period to assert a malpractice claim.
The New York legislature first considered revising the medical malpractice statute after the death of a New York woman, whose cancer was misdiagnosed on two separate occasions. The woman visited Kings County Hospital with chest pain and received an X-ray. She was sent home after a first-year resident told her it looked fine. Later, she began having difficulty breathing. Again, this was misdiagnosed with asthma symptoms. Finally, two years after the initial visit, doctors reexamined her old X-ray and noticed a small mass. By this time, the mass had developed into lung cancer and spread throughout her body. She died approximately a year later.
The woman’s lawsuit for medical malpractice was unsuccessful because the statute of limitations had expired by the time she filed suit. New York is currently one of only six states that starts the statute of limitations when the medical mistake is made, not the moment the mistake is discovered. Lavern’s Law would change this feature of the current law so that the timing for cancer misdiagnoses would begin at the moment of discovery.
After a failed attempt to modify New York’s malpractice statute in 2015, this June, the New York legislature passed Lavern’s Law. However, it is still in bill form and will only become a law if the governor signs the bill when it is sent to him. Senate Bill S6800 amends Sections 203 and 214-A of the New York Civil Practice Law. The statute of limitations remains the same, at 2½ years; however, as mentioned above, the statute of limitations would not start to accrue until the patient discovers (or should have discovered) the misdiagnosis. In addition, no lawsuit can be filed after seven years has elapsed from the date of the alleged misdiagnosis.
Commentators have noted that the bill passed by the legislature is limited in scope. For instance, it only applies to cancer misdiagnoses, leaving other medical malpractice claims unaffected. Also, the bill does not contain a one-year window to revive cases that are time-barred under current law, which was included in an earlier form of the bill.
Cancer misdiagnoses are surprisingly common. Under the current legal regime, many people are foreclosed from exercising their legal remedies because too much time has elapsed from when the medical error occurred. This bill, if signed by the governor, could help ensure that those who experience cancer misdiagnoses are able to avail themselves of the court system.
If you or a loved one has suffered from a doctor’s cancer misdiagnosis, contact the Rochester lawyers at DeFrancisco & Falgiatano Personal Injury Lawyers in New York. Call 315-479-9000 or contact us online.