Lavern’s Law, a bill intended to give victims of medical malpractice a better chance to file a claim to secure compensation for medical expenses and other damages, failed to pass the New York Senate for the second year in a row.
Therefore, New York State will again finish 2016 as a state that does not have a date of discovery rule for all medical malpractice cases. While New York does have a date of discovery rule with respect to medical malpractice caused by foreign objects left inside patients’ bodies and for toxic tort cases, it does not have a date of discovery rule that would provide many victims of misdiagnosis their day in court.
The current law in New York states that victims have two and a half years from the date of the malpractice, such as a misdiagnosis, to file a medical malpractice claim. Lavern’s Law is designed to change the start of that window from the date of the malpractice to the date they learn about the malpractice or reasonably should have learned of the malpractice. The bill is named after Lavern Wilkinson, a 41-year-old mother from Brooklyn who died of a curable form of lung cancer back in 2013 that was misdiagnosed. By the time she learned of the misdiagnosis, it had been longer than two and a half years since her cancer was incorrectly diagnosed, leaving her unable to sue for medical malpractice.
When the bill was originally introduced in 2015, it passed the Assembly before dying in the Senate. This year, the Assembly chose to wait for the Senate’s decision on the bill, which never came despite being backed by Senate GOP Deputy Majority Leader John DeFrancisco.
Without a date of discovery rule, victims of clear medical malpractice like Lavern Wilkinson will continue to find themselves without the ability to file a claim and obtain rightful compensation, leaving themselves and any dependents with increasing medical bills, a worsening medical condition, and potentially even funeral costs.
Because the Senate and Assembly failed to pass Lavern’s Law for the second year in a row, victims will need to wait until 2017 for another chance to gain the ability to file a medical malpractice claim when they learn about the misdiagnosis, rather than needing to file a lawsuit before they even know there was a problem.
As of 2010, states that do have a date of discovery rule, in one form or another are, Alabama, Alaska, Arkansas (foreign substances only), Colorado, Delaware, Kentucky, Louisiana, Massachusetts, Missouri, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania, Vermont and Washington.
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Ann Louise Zarick, Damage Deferred: Determining When A Cause of Action Begins to Accrue for A Cancer Misdiagnosis Claim, 41 U. Tol. L. Rev. 445 (2010).