The New York Legislature has passed a bill, which, if signed into law by Goveror Andrew Cuomo, will create a bigger window for filing medical malpractice cases involving cancer misdiagnosis. National law firm, Parker Waichman LLP, is investigating potential lawsuits on behalf of patients whose cancer was misdiagnosed.
On June 21, 2017, the New York Legislature passed a scaled-down version of Lavern’s Law. Lavern’s Law changes the window for filing a lawsuit to begin from the date the patient discovers the error, not from when the mistake occurred, as under current law.
Unfortunately, Lavern Wilkinson, the woman for whom the law is named. will not benefit from the change, the New York Daily News reports.
Wilkinson died in 2013 of a curable form of lung cancer that was misdiagnosed in 2010 at Kings County Hospital. Under the old statute of limitations, Wilkinson had only 15 months from the time of the medical error to file suit against the municipal hospital. She learned of the missed diagnosis too late to be able to file a lawsuit.
The Senate and the Assembly both passed the bill on June 21, 2017the last scheduled day of the legislative session. A previous version of the bill contained a one-year window for plaintiffs to revive cases that missed the deadline under current law. The original Lavern’s Law bill would have covered all types of medical malpractice cases, but the law that was just passed the Senate and Assembly was restricted to cancer cases. Under existing law, the time limit to file a case elapsed before people even knew they had a misdiagnosed cancer or other condition.
The scaled-back Lavern’s Law that passed on June 21 would allow patients with cancers and malignant tumors that are misdiagnosed to bring a malpractice lawsuit 2 1/2 years from the date of discovery of the missed diagnosis. But, if the misdiagnosis happened more than seven years earlier, the patient would be prohibited from suing. The Assembly passed a version of Lavern’s Law two years ago, but the Senate had not passed the bill until this week.
John DeFrancisco, the Senate sponsor of the bill, explained that to pass a bill, “You have to get a consensus, and to get a consensus sometimes you have to modify things.” DeFrancisco said the majority of cancer misdiagnoses occurred when a cancerous mass was found, but not disclosed, the Daily News reports. Under existing law, the statute of limitations often ran out before a patient could bring a lawsuit. New York is one of six states without a “date of discovery” law for malpractice cases.
Helene Weinstein of Brooklyn, who sponsored the Assembly bill, said that. though she preferred the earlier, broader version that encompassed all victims of medical malpractice, the more limited bill is a “good first step.”
The Medical Society of the State of New York opposes the revised bill and has urged Governor Cuomo to veto the bill when it hits his desk. The society’s president, Charles Rothberg, said the bill would add “significantly” to costs he says have driven physicians out of private practice in New York. These costs “will also discourage countless others from coming here to practice,” according to Rothberg.
But advocates for patients, including the New York State Trial Lawyers Association, say the law is an important tool for people whose cancers have been misdiagnosed. They will have a greater window to file legal complaints and seek restitution.
Treatable Cancer Not Diagnosed
Lavern Wilkinson went to Kings County Hospital with chest pain in February 2010. Doctors ordered up an EKG and a chest X-ray. A radiologist who reviewed the X-ray saw a suspicious two-centimeter mass in Wilkinson’s right lung, but Wilkinson was never given the results. At that point, the cancer was treatable with surgery, but Wilkinson was not told about the mass or referred for treatment. She was advised to take Motrin and was sent home, though she was actually suffering from early stage lung cancer, the Daily News reports.
In May 2012, Wilkinson returned to the Kings County Hospital emergency room with a chronic cough. A chest X-ray showed cancer, which had spread to both lungs, the liver, brain, and spine. The disease was now terminal. Doctors estimated that she had six months to a year to live. She died ten months later, on March 7, 2013. By the time the cancer was correctly diagnosed, it was too late for Wilkinson to bring a lawsuit over the misdiagnosis.
Lavern Wilkinson was 41 at the time of her death. She was a single mother to a 15-year-old autistic and developmentally disabled child. Micalia Squires needs round-the-clock care. Wilkinson received a $625,000 settlement from the city, but the Daily News reports this is just a fraction of the millions she might have received from a negligence lawsuit.
Wilkinson’s attorney said, “Lavern wanted to beat this cancer with all her heart for her daughter . . . But the negligence at Kings County left her no chance for a cure.” She wished for a change to the law “so that this does not happen to anyone else,” the attorney said.
Wilkinson’s aunt, Gloria O’Connor, is disappointed that the family will not be able to revive their lawsuit. But O’Connor said she takes solace from the fact that other families will not have to endure the same suffering. O’Connor has urged Governor Andrew Cuomo to sign Lavern’s Law.
According to Journal of the American Medical Association, more than 225,000 people die annually due to medical malpractice. Medical malpractice now ranks as the third leading cause of death in the United States. In addition, a Harvard Medical School study found that more than five percent of all hospital patients were injured due to medical malpractice.
Medical malpractice is the failure of a doctor or other health care professional or a health care facility – a hospital, nursing home, medical testing facility or clinic – to meet standards of good medical practice. If good medical standards are not met, the patient may be harmed and may can face lifelong medical bills; loss of income; disability; or, as in the case of Lavern Wilkinson, death.
Medical malpractice takes many forms. The physician may not have diagnosed a condition in a timely manner, or failed to diagnose the condition altogether. The physician may have improperly treated the condition or failed to correctly perform a surgical procedure. The patient may have been harmed by a medication error—the wrong drug or dosage may have been administered. Staff may not have properly followed orders for care or may have failed to respond to alarms or signs of a patient’s distress.
The Harvard Medical Practice study found that only one in eight patients who suffer harm due to medical malpractice ever files a lawsuit. The researchers concluded that medical malpractice is not accessible enough for its victims, including cases of birth injuries and other instances of negligence. But taking legal action in cases of medical malpractice is important. No one should suffer harm at the hands of a health care provider who does not live up to professional standards.
Medical Malpractice Victims –
Parker Waichman has been successful in representing and obtaining compensation for medical malpractice victims. If you believe that you or a someone you know has been injured by medical error or negligence, Parker Waichman LLP urges you to contact the firm for by calling us at 1-800-YOURLAWYER (1-800-968-7529).
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