Trust accompanies a visit to a doctor’s office or hospital. However, when a medical provider overlooks or fails to diagnose a serious medical condition, such as cancer, the consequences can be devastating. In cancer cases, a delayed diagnosis due to medical error can often turn curable cancer into a terminal one.
To make matters worse, some of these patients do not find out about the medical provider’s error until it’s too late to file suit against that doctor or hospital, no matter how egregious the error! Under New York’s current law a medical malpractice lawsuit must be filed within 2-1/2 years of when the malpractice occurred, not when the patient discovered the error.
New York legislators expect that to change for cancer victims with a bill presented to Gov. Andrew Cuomo for his signature. The legislation changes New York’s statute of limitations in medical malpractice cases to allow cancer patients up to two-and-a-half years after a medical error is discovered to file suit.
In 2010, Lavern Wilkinson checked into the emergency room at Kings County Hospital complaining of chest pain. After a chest x-ray, a first-year resident reviewed the films, told Wilkinson she was fine and discharged the 38-year-old Brooklyn mother.
Following her chest pain episode, Wilkinson developed breathing problems in 2012. When doctors reviewed her previous x-ray from Kings County Hospital, they discovered a mass that should have been noticed earlier. By the time doctors discovered the error, Wilkinson’s cancer mass had spread to other organs and had become terminal.
Despite the grave medical error, New York’s law barred her from filing a malpractice suit.
Lavern Wilkinson died a year after her cancer was diagnosed, leaving behind a disabled teenage daughter. Wilkinson attempted to file a malpractice suit against Kings County Hospital and the doctor who had misread her x-ray. The suit was dismissed as untimely, even though it was filed less than one year after the error was discovered.
New York’s Civil Practice Law and Rules (§214-a) barred her malpractice claim before she even knew about it.
Statutes of limitations are among the most stringently applied procedural rules in any civil proceedings and are cause for immediate dismissal.
New York’s new legislation rewrites the statute of limitations for cancer-related malpractice suits. The law extends the time for filing a lawsuit to 2-1/2 years after the patient discovers or should have discovered the malpractice. Lavern’s Law applies only in cancer-related cases, but nonetheless brings New York’s statute of limitations more in line with the rest of the nation.
Just five other states start the clock on malpractice suits at the time of the error instead of when the patient learns of the mistake. The change is a big step forward for New York’s medical malpractice laws and for patients’ rights. It gives cancer patients a fairer opportunity to seek legal remedies when they become victims of medical mistakes.
The new law also allows cancer patients whose malpractice claim expired during the past 10 months a renewed six-month window to file suit. If you or a family member has been the victim of malpractice related to a cancer diagnosis or treatment, the time to talk to a qualified medical malpractice attorney and to protect your rights is now.