On January 31, 2018, the State of New York enacted Lavern’s Law. The law was a milestone in the advancement of patients’ rights in regards to their ability to bring malpractice claims, especially regarding those claims that involve a failure to diagnose cancer. Lavern’s Law relates to the statute of limitations that applies to medical malpractice claims. The statute of limitations is the time limit placed on a person’s ability to bring a legal action. Once the statute of limitations runs out, a person is barred from being able to bring a legal claim. Generally, people in New York have two and a half years from the time the malpractice occurred to bring a claim. However, this law is unfair to those who, because of a delay in diagnosis, did not know malpractice occurred until after that time period expires. This is what happened to Lavern Wilkinson, and this is what Lavern’s Law addresses.
What is Lavern’s Law?
In 2013, Lavern Wilkinson was 41 years old when she died from lung cancer complications. Wilkinson had sought medical help from a hospital in 2010, but the hospital failed to diagnose her lung cancer. By the time Ms. Wilkinson learned of this failure to diagnose her cancer, the two-and-a-half-year statute of limitations had already expired. The New York State Legislature sought to expand patients’ rights so that no one would find themselves in a position like Lavern Wilkinson whose legal rights were waived without giving her enough time to even realize that her rights had been violated.
The standard statute of limitations for bringing a malpractice claim in New York is two and one-half years from the date the malpractice occurred. Some malpractice victims, however, are afforded even less time to bring a claim. A malpractice victim who suffered due to the negligence of a municipally owned health facility or hospital would only have 90 days from the date of the malpractice to notify the entity that they were bringing a claim. The victim would then only have one year and 90 days from the time of the malpractice to file suit.
Under Lavern’s law, the statute of limitations is expanded in cases of a missed cancer diagnosis. The new law grants the victim of a failure to make a cancer diagnosis two and one half years from the date the patient knew or reasonably should have known that malpractice had occurred. Victims of a failure to diagnose cancer due to a municipally owned medical facility still must abide by the 90-day notice of claim rule, but now that 90-day clock does not start to run until the time when the patient knew or reasonably should have known that malpractice occurred.
It is important to note some other aspects of Lavern’s Law. While there is a significant expansion of patients’ rights, there is still a seven-year outer limit on the ability to bring a medical malpractice action for the failure to diagnose cancer. The expansion of the statute of limitations is, therefore, not indefinite. Additionally, those whose malpractice claims had previously been barred due to the statute of limitations cannot revive their claims based on the new law. The exception to this was the law allows for the revival of claims where the statute of limitations ran between March 31, 2017 and January 31, 2018. The precise timing of those claims that come within this exception can be confusing, and so it is important to consult with the experienced medical malpractice attorneys at Scaffidi & Associates to evaluate whether your possible case comes within the exception.
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You go to your doctor, a hospital, a medical professional, or other professional health care providers when you are at your most vulnerable. Something is not right and you look to them to help provide the proper care to make you well. If you or a loved one have been the victim of medical malpractice, Scaffidi & Associates is here for you. We will fight tirelessly on your behalf to get you full and fair compensation for your losses. Contact us today.
Posted in: Medical Malpractice