Medical malpractice cases in the state of New York must be brought within the statute of limitations. In New York, the state law starts the clock for the statute of limitations at the time when the negligence occurs. If the malpractice happened in a private or a non-profit hospital, the case must be filed within 30 months of the negligence. If it occurred in a public hospital, the case must be filed within 15 months.
An effort is underway to change New York's rule so the clock begins running from the time the affected patient learns about the malpractice, rather than from the time when the doctor makes the mistake. The bill to make the change is called Lavern's Law, and is named after a 41-year-old woman in Brooklyn who died in 2013 of a form of lung cancer that should have been curable.
Kings County Hospital failed to tell her about a small mass on her right lung when she underwent an x-ray in 2010, and the cancer had spread to her brain and spine by the time the cancer was finally discovered during a subsequent hospitalization in 2012. The stage four lung cancer she was diagnosed with was no longer curable. By that time, the 15-month statute of limitations had passed and she was no longer able to sue. Estimates suggest she may have been awarded around $8 to $10 million in damages if she could have sued, which would have been enough to provide care for her 41-year-old mentally disabled autistic child who requires round-the-clock assistance and who was left an orphan by his mother's death.
Senators Push Majority Leader to Bring Lavern's Law to the Floor
The New York Daily News reports Senate Majority Leader John Flanagan has not brought Lavern's Law to the floor, even though there are more than 32 state senators who have signed on to the bill. There's enough votes to pass it, and senators and patient advocates are pushing the Majority Leader to hold a vote.
Another state senator, Thomas Libous, is making a personal push for the passage of the law. A different Daily News article indicates Libous is being treated for incurable lung cancer that will ultimately be fatal. He plans to meet face-to-face with the Senate majority leader and believes the passage of the law would be one of the best things he could do at this point in his life.
With slow moving cancers, often a misdiagnosis is not discovered until long after the 15-month statute of limitations has passed. Because of situations like this, 44 other states in the U.S. have "date of discovery" statutes. New York, however, may not get the change it needs because of fierce opposition from the medical and insurance industries.
Hopefully, the pressure from the other senators and patient advocates will force the bill to come to a vote so those who face serious harm can pursue a case and not be disqualified from compensation just because they didn't realize a doctor had hurt them until it was too late.