Mar 7 2018

Lavern’s Law Is A Big Step Forward For Victims Of Medical Malpractice, But Leaves Gaps

Statutes of limitations are time limitations on a person’s opportunity to bring a lawsuit. Why they exist, and who they benefit, are topics for another post. For now, it is important for any consumer of medical treatment in the U.S. to know that they exist, and that you need to familiarize yourself with them if you are unfortunate enough to become a victim of medical malpractice, so that you do not forfeit your right to seek justice through the court system.

With certain exceptions, New Yorkers have two and a half years from the time of the malpractice to start a lawsuit. However, New Yorkers victimized while in facilities run by municipal entities, such as the New York Health and Hospitals Corporation, have only 90 days to notify that entity through a Notice of Claim, after which they have one year and 90 days from the time of the event to file suit if the claim is not resolved.

Those limits were not great for malpractice victims, particularly if you were hurt in a NYC-run hospital, and had the additional misfortune of not being a medical malpractice lawyer familiar with all relevant time periods. But the truly outrageous scenarios that resulted from the time limits happened to patients who could never have known they were the victims of malpractice until long past the expiration of the statute of limitations. That happened to New York’s own Lavern Wilkinson, who learned her doctors had failed to diagnose her cancer, after her time to sue had expired.

Thanks to the dogged advocacy of the New York State Trial Lawyers Association, patient advocacy groups, and politicians such as Sen. John DeFrancisco and Gov. Cuomo, patients encountering such late discoveries of medical malpractice will still get their day in court. This is the New York State Senate Bill that has now become law. Under the new law, known as Lavern’s Law, a patient who finds out that he or she is suffering with a cancer or malignant tumor after the applicable statute of limitations has run, has two and a half years from the time they knew, or should have known about the malpractice, to start a lawsuit, as long as the suit is commenced within seven years of the malpractice. For those victimized by a facility subject to the stricter limitations enjoyed by municipalities, they must abide by the 90-day Notice of Claim requirement, and the one year and 90 day lawsuit requirement. But as a result of Lavern’s Law, those periods do not become effective until the patient realizes that malpractice has occurred. The same seven-year limitation running from the date of the malpractice also applies.

While that’s great news, and a huge step forward for patients’ rights, it fails to help victims of medical malpractice who realize that they, too, were misdiagnosed, and learn of the malpractice after the statute of limitations expired, but suffer from something other than cancer or a malignant tumor. For example, a liver specialist could be treating a patient with incremental doses of medication over the course of several years, without regularly conducting liver function tests. After two and a half years, the patient experiences liver failure and needs a transplant that may or may not work. That patient would be left without a remedy in court–a result that is not only unfair, but makes no sense, given the rationale of Lavern’s Law. It is extremely disheartening to think that a victim of medical malpractice has to be “lucky” enough to be suffering from cancer in order to reap the benefits of Lavern’s Law. And yet, that is exactly the state of the law now.

Jan 24 2018

Big Stores Can Be Big Bullies, Or How To Commit Theft Prevention Malpractice

It’s been a while since I was in the trenches doing criminal law on a daily, high-volume basis. But my inner justice-seeker became reanimated this week when a young (under 20 years of age) medical malpractice client reached out to me about his arrest for shoplifting at Macy’s. That it was a dumb thing to do goes without saying. But the reaction by Macy’s was not only out of proportion to the crime–it was unethical, in that the store tried to take advantage of the fear and lack of sophistication of a New York City teenager.

My client–I’ll call him James–tried to walk out of Macy’s with a sweater valued at approximately $300.00, but was caught by store security officers before he ever left the premises. The sweater, in pristine condition, went from the bag in my client’s hands into the possession of Macy’s security officers. The NYPD issued him a Desk Appearance Ticket (DAT) for the misdemeanor charges of petit larceny and criminal possession of stolen property in the 5th degree, which he will have to answer in criminal court.

But Macy’s followed up by sending James a letter from its Civil Recovery Department, claiming that Macy’s was entitled to collect $500.00 in civil damages, and threatening to “ask a law firm to follow up on [its] behalf” if he did not make payment in full. They justified it by citing to NY GOL 11-105, which they loosely quoted to warn that “a person who commits larceny against the property of a mercantile establishment shall be civilly liable…for the retail price of damaged or unrecovered merchandise, up to $1500, plus a penalty of 5 times the retail price of the merchandise or $75, whichever is greater, but not to exceed $500.” Relying on the law, Macy’s told James, “we make demand for the payment of $500.00 from you as settlement of the civil claim in connection with this incident.”

There was just one problem here. The sweater was not “damaged or unrecovered.” Therefore, the Macy’s Civil Recovery Department had no basis to go after James for civil damages. And it had no basis to threaten him with legal action if he didn’t pay up. Yet, when James contacted Macy’s Security upon receiving the letter to try to determine how seriously to take it, he was advised to pay the money. In fact, the woman at Macy’s went so far as to tell James that the judge in criminal court would probably look more favorably on him when deciding his fate if he paid before his court date.

Luckily for my client, and his father, who was about to send a check that he could ill afford to a company that did not deserve it, I was able to explain that Macy’s was trying to pull a scam on them, and that they should not fall for it. But Macy’s would have been successful in conning money from my client’s family had James not mentioned the arrest to me. And you can be sure that they have conned lots of cash out of lots of unsuspecting New Yorkers already. Macy’s, this is not a good look for you. Lay off the kids, and clean up your act.

Jun 16 2017

You Should Know Why Lavern’s Law Matters

New York State is far from the worst when it comes to how victims of medical malpractice are treated in court. For example, we do not have set limits on the amount of money damages that can be awarded to a plaintiff for so-called non-economic damages, that is, the damages that can be awarded to compensate for the victim’s pain and suffering. Other states do, in the form of “caps,” often placed at $250,000.

But medical malpractice victims can be hurt, a second time, by unrealistic limitations in the time they have to bring an action in court. Barring exceptional circumstances, malpractice victims who miss such a deadline, called a statute of limitations, are forever barred from having their complaint heard in court. In New York, a victim of medical malpractice has 2 and 1/2 years from the date of the malpractice to start a lawsuit. That may sound like a sufficient amount of time to realize that a medical error was made, and to hire a lawyer to do something about it.

But what if, through no fault of your own, you don’t discover the malpractice until more than 2 and 1/2 years have passed? Right now, you, and every other New Yorker, are powerless to seek compensation. But there is a groundswell of support for a law that may change that unfortunate situation. It is called “Lavern’s Law,” after a New Yorker who fell victim to the unfairness of the current statutes of limitations. This story in the NY Daily News provides some background. Lavern Wilkinson had a curable case of lung cancer, but her doctors failed to diagnose it on time. By the time they, and Lavern, realized their mistake, it was more than 2 and 1/2 years from the time of the misdiagnosis, and neither she, nor the family she left behind, had any recourse in our court system.

As this article in The Journal News points out, New York is one of only 6 states in the U.S. that fails to use a “date of discovery’ rule for medical malpractice victims, i.e., a rule that allows a malpractice victim to bring suit within a set time from the date of discovery of the malpractice–and not just the time of the malpractice.

As my colleague, Eric Turkewitz, stresses in his post on the topic, it’s time to pass Lavern’s Law, before this nonsensical void in our law works to deprive someone else of his or her right to hold a negligent doctor accountable. Eric’s post provides helpful information on how you can help advocate for getting Larvern’s Law to a vote on the Senate floor, and I hope you will do so. New York’s victims of medical malpractice deserve better.

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