Gov. Andrew Cuomo and the New York State Legislature have finally reached a deal on medical malpractice lawsuits relating to cancer diagnosis. Under the new law, cancer patients will be able to sue doctors and other medical professionals for a wrongful diagnosis or missed diagnosis of cancer for up to two-and-a-half years from the date the patient discovered, or should have discovered, the misdiagnosis.
There will, however, still be a limit on when these medical malpractice claims can be filed. Regardless of when the patient discovered or should have discovered the wrongful cancer diagnosis, the injured cancer patient will not be able to file a lawsuit once seven full years have passed after the doctor or other medical professional’s wrongful act. The new medical malpractice law will also be limited in two unique ways. First, it will only apply to a wrongful diagnosis of cancer or a missed diagnosis of cancer, other illnesses were not included in the final version of the bill. Second, while the law will apply retroactively in a severely limited manner – wrongly injured patients whose statute of limitations ran out in the previous ten months will only have six months to file a medical malpractice lawsuit in a New York Supreme Court.
Under the current law, a patient must file a medical malpractice lawsuit within 2 and 1/2 years (30 months) from the date of the medical malpractice 9and less against a municipally owned hospital). The problem with this approach is that patients may not realize their doctor has behaved in a negligent or careless manner until after the 30 months have passed. This left the patient injured, but with no recourse under New York’s medical malpractice laws. Unfortunately, this new law will only apply to a wrongful cancer diagnosis – a compromise between Albany and the medical communities lobbying groups in New York.
The new law is named “Lavern’s Law” after Kendra Wilkinson, a Brooklyn woman who died in 2013. Lavern had a treatable form of lung cancer, but her doctor failed to notify her about the cancerous growth he saw on a chest X-ray taken in 2010. Two years later, in 2012, Lavern went to King’s County Hospital complaining of a chronic cough. Then, after another set of X-rays, the doctors notified Lavern that her once-treatable lung cancer had spread throughout her body and was now malignant. Because Lavern learned about the doctor’s medical malpractice too long after-the-fact, she could not sue for the damages. Sadly, she passed away only one year later. Lavern was survived by a single young daughter, who is severely disabled. Left without her mother or any compensation to ensure her child would be taken care of, advocates of medical malpractice reform have aggressively pushed the legislature to change these outdated, and plainly cruel laws.
Though the law is limited only to cancer patients, advocates of patient rights say they will continue to push for medical malpractice reform in New York. “Lavern’s Law is the result of an extremely committed coalition of advocates, courageous patients and their families and others who came together to address injustice. We will continue to work across New York to make our state fairer, safer and more equitable for New Yorkers of all walks of life,” Matt Funk, president of the New York State Trial Lawyers Association, told the New York Law Journal.