The New York State Assembly passed a bill meant to help victims of misdiagnosed cancer by changing the time period which a lawsuit can be filed. If the bill were signed into law, and Gov. Andrew Cuomo said he intends to sign ‘Lavern’s Law,’ a cancer patient who was misdiagnosed would have two-and-a-half years from the date he or she discovered the misdiagnosis to bring a lawsuit – as long as seven years has not passed since the date of the misdiagnosis.
Under the current law, a victim of medical malpractice has two-and-one-half years to bring a lawsuit. The problem with the current law, according to legal scholars, is that victims of medical malpractice are often unaware that they have been misdiagnosed or mistreated. Therefore, victims can be time-barred from seeking a legal remedy through no fault of their own.
This is exactly what happened to Lavern Wilkinson, a 41-year-old Brooklyn who died in 2013 of a curable form of cancer. Wilkinson was misdiagnosed by doctors at Kings County Hospital. By the time she became aware that she had cancer, the cancer was incurable and it was too late to file a lawsuit against the doctors and hospital. According to the New York Daily News, Wilkinson left behind a “15-year-old autistic son and a developmentally disabled child, who needs round-the-clock care.”
Unfortunately, the bill (a weakened version of the original) will not help Lavern’s family. The original version of Lavern’s Law provided a “one-year reprieve” for victims to file suit that would have otherwise been time-barred. In addition to scrapping that part of the law, Legislators narrowed the scope of the law from applying to any type of medical malpractice to only applying to misdiagnosis of cancer. New York is one of only six states without a so-called “date of discovery” law.
Lavern’s law is strongly opposed by the medical establishment, which states that other states with “date of discovery” laws have caps on pain and suffering, something that New York does not limit. The Medical Society said that it was “extremely concerned about the ultimate impact to New Yorker’s access to care.”