New York State is one of the few states that do not have a “date of discovery” statute of limitations, which can prove detrimental to many medical malpractice victims. A date of discovery statute of limitations allows a person to pursue an action from the date at which the malpractice is discovered as opposed to the date on which it occurred. This is beneficial to plaintiffs who discover an error was made after the statute of limitations has expired. Lavern’s Law, a proposed bill, would start the statute of limitations at the time the malpractice was discovered, not at the date it occurred.
Lavern Wilkinson was a 41 year old woman who was misdiagnosed at Kings County Hospital in Brooklyn and passed away due to a misdiagnosis of a curable cancer. A chest x-ray in 2010 showed a mass on her right lung that the doctors at Kings County declined to make Wilkinson aware of. In 2012 Wilkinson was hospitalized again and was informed of the mistake made two years prior; by that time the mass had developed to a Stage 4 cancer and metastasized, spreading to her brain and spine. Wilkinson’s life expectancy was now 6-12 months causing her to leaving her severely mentally challenged daughter to fend for herself. The medical malpractice statute of New York State allows a person two and a half years from the date the malpractice to sue private hospitals and fifteen months to sue public hospitals. Kings County is a public hospital, meaning Wilkinson was allowed fifteen months to pursue an action; Wilkinson was not afforded the opportunity to pursue an action because the negligence was discovered after the statute of limitations expired.
Lavern’s Law did not pass and has left many feeling hopeless and without remedy. The medical insurance industry claimed that although 44 states have a date of discovery statute, those states have many caps on pain and suffering recovery as well as total damages. Although this is true of those states, those are points that could have been discussed. Lavern’s Law could have provided justice to many individuals who have been slighted by the medical community. People entrust doctors with their lives and are not provided with the care that they expect. The doctors who failed to inform Lavern Wilkinson of the mass on her lung have gone unpunished, free to practice and possibly harm other individuals.
Lavern Wilkinson is not the only person who has been misdiagnosed and unable to seek justice. Michael Dreifuss lost his wife in 2008 due to the misdiagnosis of breast cancer in 2005; his wife’s death could have been prevented if the doctor had given the proper diagnosis. Dreifuss questioned how a person is supposed to know to file a lawsuit when they are unaware of a problem. He would have really liked to see Lavern’s Law pass, hoping that it would provide some remedy to future families who suffer loss due to negligence. Thomas Libous, Senate Deputy Majority Leader, also suffering from cancer, rallied for Lavern’s Law. Libous stated that he felt bad for people who were sent home from the hospital being told that everything was fine when it truly was not.
If you or a loved one suspect medical malpractice, act quickly so you will not fall victim to New York’s medical malpractice statute of limitations. Call the experienced medical malpractice lawyers at Gallivan & Gallivan today to discuss your potential claims.