After years of fighting, a version of Lavern’s Law, New York’s medical malpractice date of discovery rule, finally received enough votes from the New York State Senate to make its way to Governor Andrew Cuomo’s desk.
If it’s signed into law, victims of misdiagnosed cancers or malignant tumors will have two and a half years to file a medical malpractice lawsuit from the date they knew or reasonably should have known of the doctor’s failure to diagnose the cancer or a malignant tumor. The statute of limitations for all medical malpractice cases currently runs from the time when the doctor’s negligence first occurred, regardless of when the patient discovered it. New York does currently have a “foreign object” exception, and “continuous treatment” exception to its medical malpractice statute of limitations, but New York is one of only six states in the nation that currently lacks a date of discovery law that would apply to situations such as misdiagnosed cancers.
This was the third time the bill made its way to the Senate, and in order for the Senate GOP to agree to bring it to a vote, a number of changes needed to be made to the original bill that passed the New York State Assembly.
One of those changes was that the family of the person whom the bill is named after, Lavern Wilkinson, will not be able to reap the benefits of the new law.
The 41-year-old mother of a 15-year-old developmentally disabled and autistic child who requires 24/7 care, died in 2013 of a curable form of lung cancer. She was misdiagnosed by Kings County Hospital doctors, resulting in her death and lack of legal protection.
Previous versions of the bill allowed a one-year window to bring back cases not previously protected by the law, but that section was removed. While Wilkinson’s family is urging Governor Cuomo to sign this bill into law in order to protect other families from going through what they have, they are disappointed that the full bill did not make it this far.
“I’m disappointed and I’m very upset about it,” said Wilkinson’s aunt, Gloria O’Connor. “That’s not nice.”
The Senate’s version was also changed to remove coverage for all medical malpractice cases, as opposed to just cancer and malignant tumor cases, but the Senate GOP refused to bring it to the floor in that form.
Helene Weinstein (D-Brooklyn), one of the sponsors of the bill, voiced her preference to pass the original bill that included all of the protections victims of medical malpractice were hoping for. However, she did say that this altered version is still a “good first step.”