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Push to Reform New York’s Date of Discovery Rule in Medical Malpractice Cases Gains Steam in Albany

Wrongful death claimsNew York is one of few states where the medical malpractice statute of limitations allows 2 ½ years from the date of the medical error for a patient to file suit against private, nonprofit hospitals or doctors. The statute allows an even shorter time frame of 15 months to file suit against public hospitals. The other 44 states allow the statute of limitations to run from the date that the patient discovers the medical malpractice or a reasonable person should have discovered the medical negligence.

There has been much controversy over this archaic statute because New York essentially stands alone as one of only six states that does not have a discovery statute, meaning patients’ clocks start from the date the negligence medical care occurred. The unfairness of this medical malpractice statute of limitations often arises in cancer malpractice cases, where the medical negligence results in the late diagnoses or misdiagnosis of cancer. Patients in such cases allege that had the cancer been timely and/or properly discovered, it would have increased their chance of survival or resulted in a less invasive or less extensive treatment.

Lavern’s Law

The proposed change in New York’s medical malpractice statute of limitations to a date of discovery has been name “Lavern’s Law.” Lavern Wilkinson, a 41-year-old single mom, died from terminal lung cancer in March 2013. Her cancer was a highly curable type of cancer, had it been timely diagnosed by the staff at a New York public hospital. Since Wilkinson was never told of the 2-cm nodule seen on her February 2, 2010 chest x-ray until May 2012, the 15-month statute of limitations had well expired for her to file a malpractice lawsuit, much less try to save her life.

The New York State Assembly passed the proposed change to the statute of limitations on June 11, 2015. The matter is now set to go before the New York Senate for consideration. More than 32 senators have already signed onto the bill. This proposed change has met major obstacles in the Senate given the opposition from the health care industry, which is keen to avoid costly litigation. It has been reported that the state’s governor, Andrew Cuomo, has indicated that he would sign the revision into law if the proposal reaches his desk.

Contact Us

If you or a loved one was injured as a result of substandard medical care, it is imperative that you immediately hire a New York medical malpractice attorney to get the maximum compensation for your injuries.

The attorneys at Gersowitz Libo & Korek, P.C. have the necessary experience and knowledge to aggressively fight to get you the compensation that you deserve. Call us at 800.529.9997 to schedule a complimentary consultation with one of our experienced New York medical malpractice attorneys today.

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