On January 31, 2018, New York Governor Andrew Cuomo signed into law “Lavern’s Law,” which changes the medical malpractice law in New York so that the two-and-a-half year statute of limitations in New York medical malpractice cancer cases begins to run on the date of discovery of the injury rather than on the date that the medical negligence occurred.
The new law is named after Lavern Wilkinson, who was 41-years-old when she died unnecessarily from a curable form of lung cancer in 2013 due to her cancer misdiagnosis at Kings County Hospital. Lavern was unable to file a New York medical malpractice lawsuit because by the time she was finally diagnosed with lung cancer, the 2.5-year period during which she could file a New York medical malpractice lawsuit had expired. Lavern died from lung cancer, leaving behind her 15-year-old developmentally delayed, autistic daughter, who requires 24/7 care.
At the time he signed Lavern’s Law into law, Governor Cuomo stated, “No one should have to go through what Lavern Wilkinson and her family experienced and I’m proud to sign this legislation that rights this wrong in the law and provides new protections and peace of mind to New Yorkers seeking care.”
New York now joins the majority of U.S. states that have “discovery rules” regarding when medical malpractice statutes of limitations begin to run where the act of medical negligence and knowledge of the resulting injury do not occur at the same time. However, New York’s Lavern’s Law only applies in cancer malpractice cases, and not all medical malpractice claims.
The law in New York now states, in part (changes are in capital letters): “S 214-a. Action for medical, dental or podiatric malpractice to be commenced within two years and six months; exceptions. An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the ACCRUAL OF ANY SUCH ACTION. THE ACCRUAL OF AN ACTION OCCURS AT THE LATER OF EITHER (A) WHEN ONE KNOWS OR REASONABLY SHOULD HAVE KNOWN OF THE ALLEGED NEGLIGENT FAILURE TO DIAGNOSE A MALIGNANT TUMOR OR CANCER, WHETHER BY ACT OR OMISSION AND KNOWS OR REASONABLY SHOULD HAVE KNOWN THAT SUCH NEGLIGENT ACT OR OMISSION HAS CAUSED THE INJURY; OR (B) THE DATE OF THE LAST TREATMENT WHERE THERE IS CONTINUOUS TREATMENT FOR THE SAME ILLNESS, INJURY OR CONDITION WHICH GAVE RISE TO THE ACCRUAL OF AN ACTION. HOWEVER, SUCH ACTION SHALL COMMENCE NO LATER THAN SEVEN YEARS FROM THE act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; provided, however, that where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. For the purpose of this section the term “continuous treatment” shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient’s condition. For the purpose of this section the term “foreign object” shall not include a chemical compound, fixation device or prosthetic aid or device.”
If you or a loved one may be the victim of cancer misdiagnosis in New York or in another U.S. state, you should promptly consult with a New York medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your cancer misdiagnosis claim for you and represent you or your loved one in a cancer malpractice case, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to be connected with cancer malpractice attorneys in your state who may assist you.
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