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.

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