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Thursday, July 6, 2017

On the last day of the regular legislative session this year, both the New York State Assembly and Senate passed a bill that would help victims of cancer misdiagnoses hold negligent doctors and hospitals accountable.  The legislation is a version of what has been called “Lavern’s Law”, after Lavern Wilkinson.

Tragically, Ms. Wilkinson died in 2013 from terminal lung cancer because doctors at Kings County Hospital in Brooklyn failed to properly diagnosis her condition. When she decided to sue, she found out that the time to file a lawsuit had already expired. Under the existing law for medical malpractice cases in New York State the clock to initiate a lawsuit starts ticking when the doctors commit the misdiagnosis.

Obviously, however, Ms. Wilkinson could not have known about the misdiagnosis when it actually happened. She only found out about the doctors’ mistake after her cancer had grown. By that point, the statute of limitations had expired. Not only did she not have the right to bring a lawsuit, she left behind her 15-year-old autistic and developmentally disabled child without any financial recourse.

Under current law, a person has only two and a half years to sue for a medical malpractice, less if the facility that committed the malpractice is run by the State or a municipal entity. The new legislation will change that for some. Unlike previous versions of the bill, the one passed by the Legislature only applies to cancer misdiagnoses.

Under this proposed new law, a cancer victim in New York would have the right to bring a lawsuit two and a half years from the date of discovery of the misdiagnosis. If the negligence happened more than seven years before the date of discovery, however, the victim would be prevented from bringing a lawsuit.

While Governor Cuomo had said he would sign the original Lavern’s Law, a spokesperson commented last month that the governor will review the revised bill.

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