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New York Personal Injury Attorneys

What is New York’s Limited “Discovery” Rule?

January 31, 2020 in

The state of New York has implemented a limited “discovery” rule  that can toll the statute of limitations when it comes to certain medical malpractice claims. “Tolling,” means delaying or freezing the typical two-and-a-half years given to victims to pursue a medical malpractice lawsuit. The majority of states impose a “discovery rule” in many instances of malpractice, allowing the statute of limitations to begin running from the date the victim discovered or reasonably should have known that they were injured. This prevents doctors from escaping liability when a patient may not be immediately aware that medical negligence has occurred. However, New York courts are limited to applying the rule in two specific scenarios.

Foreign Object

Claims of medical malpractice that involve foreign objects left inside a patient’s body can be filed once the victim discovers it, or when it should have reasonably been discovered. Patients only have one year to pursue such claims though. The statute of limitations of two-and-a-half years from the date of the incident is still an option for victims, depending on whichever time period is longer.

The foreign object must have been left inside the patient inadvertently. This commonly includes items such as gauze, sponges, towels, clamps, retractors, scissors, and other instruments. Objects that are intentionally placed inside a patient, such as implanted devices or hardware, are not covered by the discovery rule.

Failure to Diagnose Cancer (Lavern’s Law)

A recent law now expands the discovery rule for cancer patients, allowing them to sue their doctors or other medical professionals for cases when there is a failure to diagnose cancer. Once a patient realizes there has been a misdiagnosis or a failure to provide proper treatment, they have two and a half years to pursue litigation. However, the rule is not indefinite. Legal action can only be taken within the seven years following the date of the negligent act or omission, or from the last day of treatment if receiving continuous treatment for the same condition.

This law passed in 2018 and is called Lavern’s Law. It is named after a Brooklyn woman who died in 2013 from a treatable form of lung cancer. Her physician failed to notify her of a cancerous growth he discovered on a chest x-ray taken in 2010. Lavern learned of the misdiagnosis after three years had already passed and was unable to pursue damages due to the two-and-a-half year statute of limitations.

This new rule is particularly important for claims against state and municipal hospitals and clinics, as they are traditionally subject to a separate and much shorter statute of limitations.

Despite the new legislation, patient rights advocates are still pushing for medical malpractice reform in New York, since Lavern’s Law is limited to only cancer patients.

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