New Law Extends Statute of Limitations on Cancer Malpractice

Lavern Wilkinson - Albany malpractice attorneys

On March 7, 2013, Lavern Wilkinson succumbed to lung cancer at Long Island College Hospital. Wilkinson was only 41, and left behind an autistic daughter, but what made her death more than just an unfortunate family tragedy was that her cancer could have been halted with proper diagnosis when, in 2010, she came to the Kings County Hospital emergency room with chest pains. Still worse, a cruel twist of state and municipal law left her unable to sue for medical malpractice.

A radiologist spotted a suspicious mass in Lavern Wilkinson’s right lung, but instead of being given the results, she was sent home by a first-year resident with the advice to take Motrin. When Wilkinson returned to the same ER two years later with a chronic cough, the cancer had spread throughout her body and was now terminal.

Although an attending physician confirmed that the hospital had botched the initial diagnosis, the New York State statute of limitations allowed patients only two and a half years from the time of the medical error to file a claim, and for patients (like Lavern Wilkinson) treated in a New York City municipal hospital, the limit was a mere 15 months. So, by the time Wilkinson came back to the ER, her window to take legal action had already closed.

Enter Lavern’s Law

After intense lobbying by hospitals, lawyers and patients and their advocates, the New York State Legislature reached an agreement to extend the statute of limitations for medical, dental, or podiatric malpractice related to the failure to diagnose cancer. Governor Andrew Cuomo signed the bill into law on January 31, 2018.

The law will now give victims of medical malpractice two years and six months to file a claim from the time a person discovers the alleged negligent act or omission. The statute of limitations will begin to run when the patient knows or reasonably should have known of the error and harm, with a limitation that only seven years can pass between the negligent act and the bringing of an action.

Lavern’s Law focuses specifically on patients who have been harmed by the failure to diagnose cancer or a malignant tumor. It does not apply to any other medical malpractice cases. In passing the law, the governor and legislature have acknowledged the long-understood fact that many symptoms of cancer take longer than two-and-a-half years to manifest themselves.

The law also revives claims that became time-barred in the 10 months before enactment on January 31, 2018, allowing those claims to be filed within six months of the effective date of the act.
If you or a family member is a victim of medical malpractice, LaMarche Safranko Law can help. We are leading Albany malpractice attorneys, serving the entire Capital Region. Contact us at (518) 982-0770 or online.