A proposed law that would benefit victims of medical malpractice has died in the New York State Senate as the legislative session came to a close with no action taken on it.
Known as "Lavern's Law," the bill would change the statute of limitations for filing a medical malpractice lawsuit. Under current law, victims of medical malpractice have 15 months to file suit against a public hospital and 30 months to file suit against a private doctor or hospital. This statute of limitations begins when the mistake was made. The proposed law would begin the statute of limitations when the mistake is discovered.
It's an important change. In many cases, such as those involving misdiagnosis, years pass between the time a mistake is made and when it is discovered - which means that the statute of limitations runs out before the patient even knows that he or she has been hurt.
That is what happened to Lavern Wilkinson, the Brooklyn woman who is the bill's namesake: A small but suspicious mass in her lung, which ultimately turned out to be early-stage cancer, was spotted by a radiologist in 2010. But the patient was never notified, and by 2012, when she finally learned she had been misdiagnosed, the cancer had progressed to a terminal stage - and the statute of limitations had run out.
Unfortunately, this is one of many such cases that have affected patients throughout New York and in other states with similar laws. When a medical professional fails to diagnose a condition or fails to notify a patient of a potential issue, the clock immediately starts ticking on the patient's right to file a lawsuit - even though, by definition, the patient is unaware of the error! In effect, the current law robs many patients of their right to be fairly compensated when they are seriously hurt by medical malpractice.
There had been attempts to modify the law for years, but the publicity surrounding Wilkinson's case gave a boost to those efforts. The New York State Assembly passed the bill in June 2015 and sent it to the Senate, but it never came to the floor for a vote.
Lavern's Law has widespread public support, and 33 organizations sent a letter to legislative leaders asking them to advance it. But the measure faced fierce opposition from doctors and hospitals, who fear a rise in lawsuits and increased medical malpractice insurance rates if the proposal becomes law. Unfortunately, for those care providers, concerns about cost trump a patient's right to be fairly compensated after a medical error.
The future of the proposed law is unclear. But during the next legislative session, lawmakers will hopefully do the right thing and give victims of medical malpractice a fair chance to seek justice.
If you have any reason to believe you have been the victim of medical malpractice, it is critically important to get legal advice as soon as possible. Building a case takes time, and the clock is always ticking on the statute of limitations.