In 2017, 606 bills passed through the New York State Assembly and the Senate on their way to Governor Cuomo’s desk. Cuomo signed or vetoed 605 of them.
So what’s left? Lavern’s Law. This past February 2018, after it was finally passed by the New York State Assembly and Senate, Governor Andrew Cuomo signed Lavern’s Law into effect.
The law is named after Lavern Wilkinson, who went to Kings County Hospital on February 2, 2010, with chest pain. A radiologist saw a suspicious mass on the x-ray, but didn’t inform Ms. Wilkinson. Two years later when her complaints worsened and Ms. Wilkinson was finally correctly diagnosed with cancer, the 15-month statute of limitations to report medical malpractice in cases against a City hospital had expired. (The statute of limitations is 2 and ½ years in cases against private hospitals and physicians). Wilkinson passed away shortly thereafter at age 41, leaving behind a severely autistic daughter.
Under Lavern’s Law, a cancer victim who was misdiagnosed would have 2 1/2 years from the date of discovery to bring a lawsuit. However, if the negligence happened more than seven years prior, the person would be barred from suing. It should be noted that the reforms of Lavern’s Law only apply to cancer cases and not to other instances where the statute of limitations expired due to non-discovery of the malpractice.
Prior to Lavern’s Law, New York Law gave just 2 1/2 years for suits against non-governmental medical facilities, one of the shortest statutes of limitations in the country (and 15 months against governmental facilities). However, the clock starts when the treatment error occurs, not when the patient learns of the problem. New York is one of just six states without a “date of discovery” law.
This is problematic for a few reasons. Treatment error is sometimes not documented by medical professionals and oft times not discovered until the statute of limitations has expired. But more importantly, patients and the family of patients who have already suffered severe, preventable harm are now being denied a chance at legal restitution due to no fault of their own. Critical medical information was withheld from Lavern Wilkinson, information that could have potentially saved her life. In what world does it make sense to close legal doors to citizens before they even get a diagnosis?
New York State patients already have the odds stacked against them. With some of the lowest legal fees for attorneys, the New York State medical community has broad leeway for many acts of malpractice – since taking smaller suits is often not financially feasible.
New York has some of the best medical care in the world. In a cruel twist of irony, it has also become one of the worst places at holding healthcare providers accountable when that care goes wrong.
Research by Alex Eidman