July 15, 2013

162017_132140396847214_292624_nOn March 7, 2013, a 41-year-old single mother of a mentally disabled teenage daughter died after her over two-year battle with lung cancer that was treatable and curable had a New York state-operated hospital not committed medical malpractice in 2010.

When the woman arrived at the emergency room of Kings County Hospital in Brooklyn, New York on February 2, 2010 complaining of chest pain, the emergency room physician ordered an EKG and a chest X-ray. A suspicious two-centimeter mass was spotted by the radiologist on the woman’s right lung, but the first-year resident who was treating the woman did not tell her the results of the x-ray and sent her home with instructions to take Motrin. Had the resident done his job, the woman’s early-stage lung cancer would likely have been cured by surgery.

Instead, in May 2012, when the woman returned to the same emergency room complaining about her chronic cough, a chest x-ray showed that she had terminal cancer in both lungs that had also spread to her liver, brain, and spine. She was told that she had six months to live but she battled her cancer for ten months until she died due to the misdiagnosis in 2010.


New York’s applicable statute of limitations for medical malpractice claims starts to run from the date of the negligent act or omission (44 U.S. states apply the “discovery rule” that calls for the statute of limitations to begin to run from the date the patient knew or should have known of the medical negligence, which may be later than the date of the actual negligent act or omission – in the case of the New York woman, if the discovery rule applied, it would appear that the statute of limitations would have begun to run on the date of her second trip to the emergency room in May 2012, when she first had reason to believe that the emergency room physician in February 2010 had committed medical malpractice).

If the woman had been treated by a private hospital that committed medical malpractice, New York’s Civil Practice Law and Rules § 214-a would have applied: An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; ….

But because the hospital where the medical malpractice occurred was operated by the State of New York, it was subject to special rules with shortened time periods regarding when and how medical malpractice claims could be made against it: § 217-a. Actions to be commenced within one year and ninety days. Notwithstanding any other provision of law to the contrary, ….  every action …. for personal injuries or wrongful death, against any political subdivision of the state, or any instrumentality or agency of the state or a political subdivision, any public authority or any public benefit corporation that is entitled to receive a notice of claim as a condition precedent to commencement of an action, shall not be commenced unless a notice of claim shall have been served on such governmental entity within the time limit established by, and in compliance with all the requirements of section fifty-e of the general  municipal law. Except in an action for wrongful death against such an entity, an action for damages ….  for personal injuries, alleged to have been sustained, shall not be commenced more than one year and ninety days after the cause of action therefor shall have accrued or within the time period otherwise prescribed by any special provision of law, whichever is longer ….

Hence, instead of the two years and six months statute of limitations applying to the woman’s claim for medical malpractice against the hospital, the one year and three months statute of limitations applied because the hospital in which she was treated was state-operated. The woman’s medical malpractice claim against the state-operated hospital was therefore time-barred because she was not even aware of her possible medical malpractice claim against the state-operated hospital for over two years until she was finally diagnosed with lung cancer that by then had already spread throughout her body and was terminal.

An effort to amend New York’s statute of limitations in medical malpractice cases, known as “Lavern’s Law” (aptly named after the New York woman who died of treatable lung cancer) did not pass in the New York State Legislature in June 2013.


If you or someone you know may have been injured or suffered other serious harms as a result of medical malpractice in New York or in another U.S. state, you should promptly seek the legal advice of a New York medical malpractice attorney or a medical malpractice attorney in your U.S. state who may investigate your medical malpractice claim for you and file a medical malpractice case on your behalf, if appropriate.

Click here to visit our website or telephone us on our toll-free line (800-295-3959) to be connected with New York medical malpractice lawyers (or medical malpractice lawyers in your state) who may be able to assist you with your medical malpractice claim.

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