New York’s current statute of limitations for medical malpractice claims is two years and six months from the date of the alleged medical negligence, regardless whether the medical negligence and the harm caused by the medical negligence are known to the medical malpractice victim within the two-and-a-half year period.
A bill passed this past week by the New York Assembly and the New York Senate would extend the New York medical malpractice statute of limitations under certain circumstances when the medical negligence and harm were not discoverable within the current statute of limitations period. The Assembly bill and the Senate bill differ in that the Senate bill would extend the New York medical malpractice statute of limitations only in certain cases.
The stated purpose of the proposed new law is “[t]o amend the statute of limitations for medical, dental or podiatric malpractice to include a discovery of injury rule, allowing the current two and half year statute of limitations to run from the date an injured patient discovers, or should have discovered, that their injury was caused by malpractice. However, in no event shall a malpractice action be filed more than seven years after the date of the alleged malpractice. Upon the effective date, patients will have only one year in which to file a claim for medical malpractice where, during and up to the seven year period prior to the effective date, the applicable periods of limitations has or had expired before the injured plaintiff/claimant or representative of their estate knew or should have known of the injury and the negligent conduct causing the injury.”
The current New York law provides, in part: “An action for medical, dental or podiatric malpractice must be commenced within two years and six months of 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.”
The Senate Bill
The bill as passed by the New York Senate on June 21, 2017 adds the following language (in capital letters) to the present law (as well as other language): ” … 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 … ”
The proposed law is known as “Lavern’s Law” and is named after Brooklyn resident Lavern Wilkinson, who died from incurable lung cancer in 2013 despite having had an x-ray in 2010 that showed her lung cancer in an earlier stage when it could have been successfully treated and would have avoided her death. However, her medical providers negligently failed to identify the cancer on her x-ray and the cancer therefore had progressed to a deadly, untreatable stage by the time it was diagnosed.
Because New York’s statute of limitations for medical malpractice claims begins to run from the date of the negligent act or omission, Lavern Wilkinson was unable to bring a medical malpractice claim against the allegedly negligent medical providers who failed to diagnose and treat her lung cancer in 2010 because the statute of limitations had expired by the time her lung cancer was finally diagnosed.
The bill known as Lavern’s Law was first introduced in the New York Legislature in 2013 and included all medical malpractice claims and was not limited to cancer claims only, but the Republican-controlled New York Senate refused to consider the bill until a compromise could be worked out so that the changes to the law would apply only to cancer claims.
If the bill is signed into law by the Governor of New York, New York would join the other 44 U.S. states where the statute of limitations in medical malpractice cases begins to run when the alleged medical malpractice victim first knew of a possible medical malpractice claim or when the victim reasonably should have known about a possible medical malpractice claim.
If you or a loved one may have been harmed as a result of medical malpractice in New York or in another U.S. state, you should promptly find a New York medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.
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