As of February 2, 2018, Lavern’s Law has officially become a New York State law. Lavern’s Law had been debated since 2013, when Lavern Wilkinson succumbed to her illness as a result of her doctor’s misdiagnosing her. Wilkinson died at age 41 of a type of cancer that could have been cured had her doctors recognized and treated it sooner.
Wilkinson sought to sue her doctors for medical malpractice, primarily to help provide her 15-year-old disabled child with the round-the-clock care she needs. However, Wilkinson was unable to file a lawsuit because the statute of limitations to sue for medical malpractice had already been exceeded. By the time she discovered she was misdiagnosed, she had become terminal, and it was too late to file a lawsuit or to save her life.
Typically, the statute of limitations to sue for medical malpractice in New York State is two-and-a-half years from the date the cause of the illness occurred. In Wilkinson’s case, the cause of illness that could have been considered medical malpractice would have been the time she was originally misdiagnosed. However, she did not learn of her misdiagnosis until the two-and-a-half-year window of opportunity had already passed. Lavern’s Law extends the statute of limitations for cancer patients who have been misdiagnosed to begin from the time the patient has learned of the misdiagnosis—otherwise known as the date of discovery—rather than the date the cause of the illness occurred. The State Legislature approved the bill in June of 2017, but Governor Cuomo pushed for certain amendments before signing it into law.
The deal between the Legislature and the Governor was not reached until Monday, January 29. The amended version of the bill gives those whose statute of limitations expired in the past 10 months an additional six-month period to sue. This was changed from the original bill, that provided a period to sue for cases dating back seven years. Further, the Governor altered the bill so that it clearly applies to only cancer patients who have suffered medical malpractice rather than all victims of medical malpractice.
The new law is controversial in that opponents believe it will produce adverse effects. The Lawsuit Reform Alliance of New York predicts that the law will cause the cost of medical liability insurance for doctors and hospitals to increase. They further claim that the passage of Lavern’s Law is only making it easier for patients to file lawsuits, rather than help to improve the issues of medical malpractice altogether. The state medical society, who represents doctors and hospitals, is also on the side of opposition, agreeing that this will only increase insurance costs for hospitals and doctors and added that it may even deter doctors from practicing in the state.
Others argue that while cancer misdiagnoses are matters of concern, Lavern’s Law should have been accompanied by a sort of gatekeeping plan that would eliminate warrantless lawsuits. A representative of the New York chapter of the American College of Obstetricians & Gynecologists mentioned that dealing with more liability claims and lawsuits will pull doctors’ attention away from their patients and hinder their ability to provide proper care.
Those in support of Lavern’s Law, such as the New York State Trial Lawyers Association disagree, arguing that this law will finally bring justice to those who have suffered permanent damages or the loss of a loved one because of medical malpractice. Lavern’s Law will provide more medical malpractice victims and their family members the right to be heard in court.
The damages suffered from an instance of medical malpractice can be devastating, costly, and even irreparable. It is important to understand in which instances your medical malpractice case may appropriately be filed as a lawsuit. Contact the experienced personal injury lawyers at Georgaklis & Mallas, PLLC, to help advise you on the best choice of legal action for you and your family. Our attorneys will work hard to represent you and fight for the compensation you may be owed after falling victim to medical malpractice. For more information or to schedule a consultation with our personal injury lawyers, call (718) 238-2400 or email [email protected].