For the second year in a row, a bill that would have changed medical malpractice law in New York failed. New York is currently one of only 6 states that starts the statute of limitations—the time period where a case is allowable—at the date medical malpractice occurred, instead of the date when the malpractice was discovered The bill, also known as Lavern's Law, would have started the malpractice clock at the date of discovery.
The bill's failure was attributed to a strong push from the medical establishment to oppose the new law. Though 44 other states already have already enacted similar laws, the medical community successfully lobbied the legislature on the notion that the bill would result in more malpractice cases with high payouts.
While the extended dates under the bill might have allowed for more cases, the reality is that few cases are dismissed every year for being outside of the statute of limitations, and few victims of malpractice receive those large payouts.
New York is one of 15 states that does not have limits on the amount of money victims of malpractice can recover. The other 35 states set limits on “non-economic” damages, a monetary representation of the pain, suffering, and distress the victim suffered as a result of the injury. These non-economic damage limits range from about $250,000 to $500,000. Damage caps for wrongful death are set higher.
Some medical malpractice injuries result in a complete upheaval of life circumstances, and many people believe these caps are inappropriate at best, unconstitutional at worst. Non-economic damage caps above $500,000 are rare, and are only awarded for the most heinous injuries.
In 2014, the Florida Supreme Court ruled that the $1 million damage cap was unconstitutional after hearing a wrongful death case for a military mother. 20-year-old Michelle McCall bled to death from an avoidable injury during her cesarean section. Non-economic damages were calculated at $2 million, $500,000 for her newborn son and $750,000 for each of her parents, but the district court awarded $1 million per the cap. The Florida Supreme Court ruled that the limits imposed “illogical burdens” on victims of malpractice.
The medical community in New York argued that if the state passed Lavern's law, it would also have to work though tort reform and pass limits on non-economic damages. Lawmakers in the state could not come to an agreement about Lavern's law and the future of tort reform in the state, so they brought the legislative session to close without voting on the bill.
States with non-existent or limited discovery rules include: Arkansas, Indiana, Maine, Minnesota, New Mexico, South Dakota, Texas, Idaho, New York, and Virginia.
Victims of medical malpractice in New York will have to wait another year to convince lawmakers that discovery laws, including Lavern's law, are important tools of patient protection.