May 16, 2022

Plaintiff’s New York medical malpractice complaint alleged that on May 16, 2014, defendant radiologist reviewed a CT scan of plaintiff’s abdomen and pelvis, which revealed nodular densities in the right lower lobe of the lung. The defendant recommended a dedicated CT scan of the chest to further evaluate the right lower lobe lung nodular densities, but no CT scan was obtained at Mount Sinai Hospital. The complaint further alleged that plaintiff was never informed of the findings of nodular densities, the need for a chest CT scan, or the likelihood that she had lung cancer.

Plaintiff alleged that she discovered the nodular densities on October 7, 2019, when she underwent another CT scan at another hospital. Plaintiff filed her cancer misdiagnosis medical malpractice lawsuit on March 3, 2020, alleging causes of action for medical malpractice and lack of informed consent. Defendant moved to dismiss these causes of action as time-barred. Plaintiff argued, and the motion court agreed that, under the January 31, 2018 amendment to CPLR 214-a (“Lavern’s Law”), her causes of action were not time-barred. The defendant appealed.

Prior to January 31, 2018, CPLR 214-a, which applies to medical malpractice and lack of informed consent causes of action, including the negligent failure to diagnose cancer or a malignant tumor, provided for a two year and six months statute of limitations. The New York Supreme Court, Appellate Division, First Department stated in its March 8, 2022 decision that Plaintiff’s medical malpractice causes of action accrued on May 16, 2014, the date of her alleged misdiagnosis and was time-barred two years and six months later, on November 16, 2016.

Lavern’s Law

Lavern’s Law, which took effect on January 31, 2018 (effective date), provides certain medical malpractice plaintiffs with a discovery toll and states that an action based upon the alleged negligent failure to diagnose cancer or a malignant tumor . . . may be commenced within two years and six months of the later of either (i) when the person knows or reasonably should have known of such alleged negligent act or omission and knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than seven years from such alleged negligent act or omission, or (ii) the date of the last treatment where there is continuous treatment for such injury, illness or condition. This amendment “appl[ies] to acts, omissions, or failures occurring within 2 years and 6 months prior to the effective date of this act, and not before” (L 2018, ch 1, § 6). Thus, by its terms, the discovery toll in Lavern’s Law’s applies retroactively to causes of action that were not time-barred as of Lavern’s Law’s effective date, i.e., causes of action accruing on or after July 31, 2015. The New York Appellate Court stated, “Plaintiff’s causes of action, which accrued on May 16, 2014, predate the earliest date to which Lavern’s Law’s retroactive discovery toll applies.”

Lavern’s Law also provides for the revival of certain time-barred medical malpractice causes of action. Where a claim based on the negligent failure to diagnose cancer or a malignant tumor occurred and, “within ten months prior to the effective date of the act . . . became time-barred under any applicable limitations period then in effect, such action or claim may be commenced within six months of the effective date of the act . . . .” (L 2018, ch 1, § 4). Therefore, a failure to diagnose cancer or malignant tumor cause of action that became time-barred between March 31, 2017 and January 31, 2018 may be revived if it is commenced no later than July 31, 2018. The New York Appellate Court stated, “Because plaintiff’s claims became time-barred on November 16, 2016, the limited revival provision of the new law (for certain claims that became time-barred after March 31, 2017) does not avail her (see McKinnon, 187 AD3d at 891, citing L 2018, ch 1, § 4). Plaintiff’s lack of informed consent claim also fails to state a cause of action because the complaint does not contain an allegation about a diagnostic procedure that invaded the integrity of plaintiff’s body,”

Source Ford v. Lee, 2022 NY Slip Op 01414.

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