New York Legislature Considers Date Of Discovery Rule In Medical Malpractice Cases

162017_132140396847214_292624_nNew York is one of the few U.S. states where the medical malpractice statute of limitations begins to run from the date of the alleged negligent act or omission rather than from the date that the patient discovered the medical malpractice or a reasonable person should have discovered the medical negligence. The other five states that do not have a date of discovery statute in medical malpractice cases are Arkansas, Idaho, South Dakota, Minnesota, and Maine.

New York’s medical malpractice law presently requires that medical malpractice cases be filed with 30 months from the date of the alleged medical negligence incident if the claim is against a private or non-profit hospital but only 15 months when suing a public hospital.

The unfairness of a medical malpractice statute of limitations that begins to run when the medical negligence occurred rather than when a person discovered or reasonably should have discovered the medical negligence often arises in cancer malpractice claims, where the cancer patient alleges that medical negligence resulted in the late diagnosis or misdiagnosis of cancer, where earlier and proper cancer treatment could have begun that would have been less invasive or less extensive and/or the patient’s chance of survival would have been greater, before the cancer had spread over time.

Lavern’s Law

The proposed change in New York’s medical malpractice statute of limitations law to a date of discovery rule has been deemed “Lavern’s Law,” named for 41-year-old Lavern Wilkinson whose 2-cm lung nodule observed on a February 2010 chest x-ray at a New York public hospital was not told to her until May 2012, at which time her cancer had advanced to stage-4 and had spread to her brain and spine, which was after the applicable 15-month medical malpractice statute of limitations had already expired. Ms. Wilkinson died from lung cancer in March 2013, which was highly curable if she had been diagnosed and treated for her lung cancer at the time that the x-ray was read as showing a suspicious mass.

The New York State Assembly passed the proposed change to New York’s medical malpractice statute of limitations law on June 11, 2015, and the matter now goes to the New York Senate for consideration, where more than 32 New York senators have signed onto the bill. The health care industry and medical malpractice insurance companies have lobbied to fight the proposed law in the New York Senate, where the medical community has the support of some Republican senators who argue that the proposed change to New York’s medical malpractice law would result in massive medical malpractice payouts and a surge in medical malpractice insurance costs. It has been reported that New York Governor Andrew Cuomo has indicated that he would sign the revision into law if the proposal reaches his desk (New York’s legislative term ends on June 17, 2015).


If you or a loved one suffered serious injury or death as a result of medical negligence in New York or in another U.S. state, you should promptly find a New York medical malpractice lawyer, or a local medical malpractice lawyer in your U.S. state, who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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This entry was posted on Monday, June 15th, 2015 at 5:08 am. Both comments and pings are currently closed.

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