New York Extends Time Limit for Failure to Diagnose Cancer Suits

Medical malpractice lawsuits allow patients to hold medical professionals accountable for negligent or reckless conduct in rendering treatment resulting in harm to the patient. New York State law, like all states throughout the country, sets limitations on the reach of these lawsuits. One specific limitation involves time. Victims of medical malpractice must commence a lawsuit within a specific period of time, or they lose the ability to hold the medical professional legally accountable for the professional's conduct.

The basic concept of this time limit, or statute of limitations, seems fair in theory. However, the reality is that it is impossible to determine the exact time in which a patient will discover a medical professional's negligence. The New York State Legislature eventually recognized this, and recently moved to improve a previously established statute of limitations.

How has the New York State Legislature moved to change the state's statute of limitations for medical malpractice lawsuits?

New York lawmakers proposed and passed a law that extends the statute of limitations within which to commence a malpractice lawsuit for cases involving a failure to diagnose cancer. Bill S.6800/A.8516, also known as Lavern's Law, states:

The period in which to commence an action or proceeding or to file such notice of claim for medical, dental or podiatric malpractice shall not begin to run until the later of either: (A) When one knows or reasonably should have known of the negligent failure to diagnose cancer or a malignant tumor whether by act or omission and knows or reasonably should have known that such negligent act or omission has caused the injury; or (B) The date of the last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the accrual of an action. However, such an action shall commence no later than seven years from the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the act, omission or failure; provided, however, that where the action is based upon the discovery of a foreign object in the body of a patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.

Governor Andrew Cuomo signed the bill into law on Wednesday, January 31, 2018.

How does this impact victims of medical malpractice in New York?

Lavern's Law was drafted by lawmakers after a patient, Lavern Wilkinson, was misdiagnosed with asthma. A later review of her X-ray showed she had lung cancer. At the time of the scan, the cancer was very likely treatable. However, the patient did not discover the medical error until after the time limit to file suit had passed.

Lavern's Law changes when the statute of limitations begins to run. Previously, as was the problem in this case, the statute of limitations began to run at the time the negligence occurred. Under the new law, the statute of limitations does not begin to run until the patient discovers, or reasonably should have discovered, the medical professional's negligence in cases involving the misdiagnosis of cancer.

The reform is viewed as a win for patient advocates. Those who supported the proposal note that New York was one of only six states in the country that had yet to pass a "date of discovery" law. The only remaining states that do not have such a law are Arkansas, Idaho, Maine, Minnesota, and South Dakota.

Statute of limitations differ across various types of cases and can depend on the issues and facts of each specific case. If you have any questions or concerns about how a statute of limitations may affect a potential medical malpractice or another type of case, you should seek the advice of an experienced attorney. The attorneys at Coughlin & Gerhart, LLP regularly handle such cases and can determine whether these or other time limits may apply.