New York State's Legislature once again prevented a floor vote on a bill aimed at giving many victims of medical malpractice a day in court. Lavern's Law is named after a cancer stricken Brooklyn mom, Lavern Wilkinson, who died from a curable form of lung cancer as a result of a hospital's misdiagnosis of an x-ray three years earlier. While her doctor found a nodule on her lung, no one ever told her about it, investigated the mass or performed follow-up testing. The nodule developed into stage IV cancer that spread to her lungs, spine, liver and brain. Unfortunately, her physician's delay in the diagnosis cost Lavern her life. She left behind an autistic daughter who requires special care.
Medical errors are the third leading cause of death in the United States. Under New York law, a patient has 2 ½ years to file a lawsuit for medical negligence against a private hospital and 1 year and 90 days to file a notice of claim against a public hospital. However, the clock begins to run when the medical error occurred regardless of whether the patient knew, or should have known, about it.
The Wilkinson family did not discover that Lavern had cancer, or that the doctors failed to diagnose a mass on her x-ray, until after the time to file a claim had expired. Lavern's Law would add a "date of discovery" tolling period that would extend the window for medical malpractice cases to when the medical error was discoverable, instead of when the mistake occurred. The bill passed in the Assembly by a vote of 99-23, had the Governor's endorsement, but was stopped in the Senate from being voted on.
New York is only one of six states that fail to afford patients a date of discovery rule to pursue medical negligence claims.