Earlier this year, Governor Andrew Cuomo and New York State legislative leaders entered into an agreement that changed the landscape of medical malpractice suits in New York State—Lavern’s Law. This law, named after the late Lavern Wilkinson, extends the statute of limitations for an individual to sue a treating medical professional and/or medical facility for the misdiagnosis of cancer.
Under New York law (New York Civil Practice Law and Rules § 214-a), an individual has, in most situations, two years and six months to commence an action against a medical professional and/or facility for medical malpractice. Under this statutory framework, this period is calculated from the date of the act, omission or failure to treat that constitutes medical malpractice—often times barring valid claims because an individual may not learn of malpractice until the expiration of this timeframe.
Lavern’s Law, however, expands the calculation of the statute of limitations for a medical malpractice action based on cancer misdiagnosis to allow an individual to commence an action against a medical professional and/or facility up to two years and six months from the time period that they learned, or should have learned, of the misdiagnosis—with an outer limit of seven years from the date of the occurrence.
Under the old statutory framework, a majority of cases where a cancerous mass was found and not disclosed to the patient would be time-barred before an individual learned of the malpractice and commenced a lawsuit. Now, if an individual learns of life-altering news that they have an aggressive form of cancer that was not only misdiagnosed by a medical professional in years prior, but the cancer could have been successfully treated but for the misdiagnosis, they can commence a medical malpractice action against the said medical professional to seek compensation for their injuries.
While Lavern’s Law only applies to the misdiagnosis of cancer, it is an important development in medical malpractice law and patient rights. Unlike other medical ailments such as a stroke or a heart attack, in many cases, cancer is a slow-growing disease that can go unnoticed by an individual for years. Without proper medical treatment and detection, a delay in diagnosis can be a death sentence. Lavern’s Law allows individuals—and their families—to, at the very least, hold medical professionals accountable for their errors and omissions in cancer diagnosis.
It will be interesting to see if Laverne’s Law changes the landscape of medical malpractice actions in New York going forward. The original intent of Lavern’s Law—which first made its way to the legislative floor—was to expand the statute of limitations for all medical malpractice actions. Medical insurance lobbyists, however, were successful in their attempt to keep the law exclusive to cancer misdiagnosis. Will New York ever change course and expand the scope of Lavern’s Law to other medical malpractice actions? Only time will tell…
If you or a loved one has questions regarding a medical malpractice action—including an action based on delayed diagnosis of cancer—please contact HoganWillig’s Ryan Johnsen at 716-932-6608.