The Senate and Assembly in New York have recently passed legislation to lengthen the statute of limitations in malpractice cases involving a diagnosis of cancer. Originally, the bill known as “Lavern’ Law” would have encompassed all types of medical malpractice claims; however, negotiations were needed to reach the necessary votes to pass the bill. It was in 2013 that the bill first surfaced, yet lacked sufficient support to realistically pass through the Senate. The revised bill allows for the statute of limitations to begin when the patient becomes aware of the error in diagnosing cancer rather than when the failure to detect or diagnose actually occurred. The sponsors of the bill were John DeFrancisco in the Senate and Helene Weinstein in the Assembly.
The Assembly had passed an earlier version of the bill, yet the Senate been unable to do so. Governor Cuomo confirmed that when the legislation passed he would sign it into law. The current statute of limitations for private medical providers and hospitals is two and a half years, while public hospital claims must be brought within 15 months. With the new bill, there is a maximum limit of seven years from the date the error occurred. Over 40 states currently begin the statute of limitations in cancer claims when the individual becomes aware of the incident of malpractice. The state’s trial lawyers largely supported the bill and were opposed by some medical organizations. The New York Medical Society expressed concern that the result could lead to more limited cancer treatment access in the state. The New York Lawsuit Reform Alliance has been vocally opposed to the law, which they think can lead to a financial crisis.
Extending the statute of limitations was partially inspired by Lavern Wilkinson, who died of lung cancer in 2013 at the age of 41. Wilkinson was a single mother and a librarian who visited Kings County Hospital in 2010; the staff failed to recognize or diagnose the presence of cancer, which would likely have been curable at that time. The disease was not identified until two years after and it had significantly progressed by that point. Upon becoming aware of the mistake, Wilkinson filed a malpractice claim in hopes of obtaining financial support for her 15-year-old daughter, Micalia Squires, who was disabled and needed considerable care.
The NY state statute defines medical negligence (malpractice) as when a medical professional or facility exhibits a failure to provide care up to a level that is the acceptable standard for the profession and injury, illness, or worsening conditions result. The elements that must be proven in a case include:
- The individual is under the care of a professional
- The medical professional fails to properly diagnose, advise or treat according to acceptable standards
- This failure led to injury, illness or worsening of a condition