On Wednesday, June 21, 2017, the Legislature passed a scaled-back version of Lavern’s Law that would begin to bring medical malpractice cases involving cancer when a mistake is discovered by the patient, and not when the general malpractice error occurred, as under the law at this time. Unlike the previous version of the legislation, the bill passed by the Senate and Assembly on June 21, does not contain a one-year window to revive cases of undiagnosed cancers and other malignant tumors that are time-barred under the current law, reports The New York Daily News.
Lavern Wilkinson’s Cancer
The law is named for Lavern Wilkinson, who went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the X-ray on the 41-year-old Brooklyn woman, but did not inform her. Two years later it was found again when Wilkinson’s complaints worsened, but the 15-month statute of limitations had expired. A chest X-ray found the cancer had spread to both lungs, her liver, brain, and spine. The disease was now terminal. Wilkinson died in 2013 of a curable form of lung cancer after doctors at Kings County Hospital misdiagnosed her.
By the time she sued, the time frame to file had expired. She left behind family including a 15-year-old autistic and developmentally disabled child who requires round-the-clock care, according to the Daily News.
New York is one of six states that denies patients their right to a day in court if they do not find out about the problem in time. Lavern Wilkinson’s aunt said she takes some solace that “other families, moving forward, won’t have to go through what Lavern’s family did, and she urged Governor Cuomo to sign it into law.”
In another case, a woman died in 2008 from breast cancer, two months after her son died of brain cancer, leaving her young daughter without a mother. Despite regular mammograms, when the woman was diagnosed in November 2006, it had already spread to her bones A few years later, when it was too late for treatment, her family found out that her doctors had neglected to tell her in mid-2005 that there was a problem.
National law firm Parker Waichman LLP has extensive and successful experience representing clients in all types of litigation, including medical negligence. Attorneys at the firm are available to answer any legal questions for individuals seeking to file a potential lawsuit.
In a letter from the president of the New York State Trial Lawyers Association (NYSTLA), Edward Gersowitz, congratulated the Speaker Heastie, Assembly Majority Leader Morelle, and Assemblymember Weinstein for their leadership and thanked the many sponsors of both parties for their “strong bipartisan support.” Gersowitz also thanked The New York Daily News along with the hard work of people who were personally affected by medical negligence – “families of people who needlessly died and the survivors” and all who lobbied in Albany and helped to pass Lavern’s Law with the New York State Assembly’s overwhelming vote of 105 to 23.
The Daily News has advocated for passage of Lavern’s Law for the past several years. The Assembly had passed a version of the bill two years ago, but the Senate did not, until June 21 with a vote of 55 to 6.
Conditions of the Revised Bill
The revised bill says a misdiagnosed cancer victim would have 2 ½ years from the date of discovery to bring a lawsuit (within 15 months if a municipal hospital is responsible). However, if the negligence happened more than seven years prior, the person would be barred from suing.
The original Lavern’s Law bill would also have covered all medical malpractice cases, but the Senate Republicans would not bring it to the floor, according to the Daily News. Senate bill sponsor John DeFrancisco said, “You have to get a consensus, and to get a consensus you have to modify things.” DeFrancisco, said the bulk of the cases occurred where a cancerous mass was found, but not disclosed, and the statute of limitation ran out before a patient could bring a lawsuit.
Assembly bill sponsor, Brooklyn Democrat, Helene Weinstein said that she would have preferred to do the broader bill that encompassed all victims of medical malpractice, but the more limited version is a “good first step.”
Governor Cuomo’s Decision
New York State Governor Cuomo had said he would sign the original Lavern’s Law if it passed the Legislature. The governor will now review the revised bill, according to a spokesman.
According to a Johns Hopkins study, preventable medical errors are one of the leading causes of death – right behind cancer and heart disease.
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