Albany Medical Malpractice Lawyers Praise New NYS Lavern’s Law
On January 31, 2018, after decades of failed attempts to change the law, New York State enacted “Lavern’s Law,” which amends CPLR 214-a by extending the statute of limitations to file a lawsuit for the failure to timely diagnosis and treat cancer. Cancer patients who are misdiagnosed can now file a lawsuit within 2 ½ years of when the patient discovers that their doctors failed to diagnose the cancer or malignant tumor. If the patient is still treating, the clock for the 2 ½ year statute of limitations begins to run when the continuous treatment ends. The new law sets an outer limit of 7 years from the date of the misdiagnosis to file a claim.
For cases against municipal hospitals and health care providers, CPLR 203(g)(2) now provides claimants 90 days from the date of discovery of the misdiagnosis (or the end of continuous treatment) to file a “Notice of Claim” against the municipality, subject to the 7 year outer limit. Also, patients whose medical malpractice claim expired under the old law between March 31, 2017 and January 31, 2018, now have until July 31, 2018 to file a lawsuit.
Delay in the diagnosis of cancer can be fatal. Under the old law, patients who were misdiagnosed and did not learn of their cancer until years later, were barred from filing a lawsuit. In the case of Lavern Wilkinson, a 41-year old woman who died in 2013 from lung cancer and was survived by a disabled daughter, she underwent x-rays but did not learn about her cancer until after the statute of limitations had expired. Now, New York has adopted a discovery rule that opens the courthouse doors to cancer patients who through no fault of their own, were the victims of medical malpractice.