Lavern’s Law Dies in NY – Med Mal Statutes of Limitation Remain Unchanged

A bill involving the statute of limitations on medical malpractice lawsuits in New York has died before coming to a vote on the state’s senate floor. The bill, known as Lavern’s Law, was introduced after a single mother of a special needs child died of a curable lung cancer that physicians at Kings County Hospital failed to diagnose accurately.

The bill will now have to wait for the next senate session, leaving some victims of medical malpractice in the state without legal recourse for their injuries.

Bill was on track to become law

The decision not to bring the bill to a vote was disheartening to supporters. More than 32 state senators had signed onto the bill, which would have given it enough votes to change medical malpractice law in the state. Governor Cuomo had also voiced support for the bill, and said he would sign it into law if it crossed his desk.

Currently, the term on malpractice lawsuits in New York is 15 months from when the malpractice occurs. For victims that don’t discover the error until a medical problem is diagnosed, that 15 months may not be long enough. Forty-four states already have laws similar to Lavern’s Law, which place the “date of discovery” as the beginning date for the statute of limitations to begin.

Misdiagnosis leads to poor prognosis

That was the case with Lavern Wilkinson, a young single mother who went to Kings County Hospital in 2010 with chest pains. Despite the fact that a chest x-ray taken at the time showed a small mass in one lung, Wilkinson was diagnosed with asthma and sent home, uninformed about the radiology findings. For two years, Wilkinson struggled with a persistent cough that was treated with a variety of medications.

In 2012, Wilkinson returned to the hospital with breathing difficulties and it was at that time she was diagnosed with lung cancer. Unfortunately, the cancer had spread by that time and was categorized as a stage IV cancer with little or no chance of long-term survival. If the cancer had been properly diagnosed and treated when it was first detected, Wilkinson’s cure rate would have been around 75 percent.

Wilkinson died of her cancer in 2013, leaving behind a severely disabled, 15-year-old daughter. When she was diagnosed, Wilkinson discovered she was unable to seek legal action for her misdiagnosis because the statute of limitations had already run out. Legal experts told the New York Daily News that if Wilkinson had been able to take her case to court, a jury award would have likely been between $8 and $10 million. Instead, Wilkinson was awarded $625,000 by the city, after her story was published in the Daily News.

Now, state lawmakers are trying to right the wrong faced by Wilkinson, with a bill to change the statute of limitations on medical malpractice lawsuits in the state. Senate Majority Leader John Flanagan was urged to take the bill to a vote, but Flanagan told the Daily News he wants the bill discussed as part of an overall reform package. Flanagan has been under pressure by some lawmakers and the Greater New York Hospital Association to place a cap on malpractice awards victims could receive, in exchange for a date of discovery amendment to the current statute of limitations.

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