It can be heartbreaking for a victim of medical malpractice and their family to discover that they are unable to file a medical malpractice lawsuit against the medical personnel or institution that misdiagnosed an ailment because of New York State’s strict statute of limitations on such claims.
Under current laws, claimants have to submit a lawsuit against a public health medical practitioner or institution within 15 months of the misdiagnosis occurring, and the time period for private institutions is 3 years. The problem for victims of medical malpractice is that the misdiagnosis may not actually be discovered or revealed until the period allowed under the statute has already expired.
The failure of the state law to help genuine victims of medical malpractice was highlighted by the case of 41-year-old Lavern Wilkinson, a New York resident who died of lung cancer in 2013. Doctors at Kings County Hospital had not reacted to an X-ray that had been taken in 2010 which showed a small mass that was the developing cancer. Because the disease itself was not diagnosed until 2013, despite the fact that the cancer might have been successfully treated if it had been discovered in 2010, Mrs. Wilkinson’s family is unable to file a lawsuit.
State legislators pushed for a change in the state’s statute of limitations back in 2013 after this particular case came to light and presented a bill that would have ensured that the statute of limitations allowed 15 months (for public health institutions) and 3 years (for private health institutions) from the discovery of the malpractice rather than when the misdiagnosis itself happened. The bill was named “Lavern’s Law” at the time, but it failed in the state Senate.
This year, the bill was again presented and passed through the state Assembly with flying colors with bipartisan support from both sides of the house. Ninety-nine members of the Assembly voted for the bill, while 23 voted against. However, when it came to the Senate hearing two weeks later, the bill stumbled when time ran out and the GOP Majority Leader ruled that there would be no vote on the bill.
The bill is expected to be presented once more during the next legislative session, and it is hoped that it will get a fair hearing and will pass this time. If it does, it will not help Lavern Wilkinson who died two years ago, but may help relieve thousands of family members of medical malpractice victims who have suffered severely or died as a result of negligence.
Medical negligence and malpractice cases are complex, and any person who thinks that they have suffered from misdiagnosis or any other form of medical malpractice should contact an experienced medical malpractice attorney as soon as they are physically able to do so. This advice is particularly relevant under the present restrictive laws in this state, but it also applies even if and when Lavern’s Law successfully gets over the Senate hurdle later this year. New York State is only one of 5 states across the country where such a limited time frame is enforced.
Richard S. Jaffe Esq. is a New York and Long Island medical malpractice lawyer with extensive experience in medical negligence and malpractice cases. Contact him for a free consultation at the Law Offices of Cohen & Jaffe LLP, 2001 Marcus Avenue, Suite W295, Lake Success, NY 11042. Phone: 516-358-6900 or toll free: 800-483-6149.
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