June 21st, 2017

NY Senate Passes “Lavern’s Law” — A Date of Discovery Law for Cancer Cases (Updated!)

A month ago I posted about New York’s need to pass “Lavern’s Law,” which extends the date of discovery in medical malpractice cases from the time the discovery of malpractice was made, or could reasonably have been made.

The problem, as I noted back then, was that some folks lost their rights due to our short statute of limitations — 2 ½ years for most cases and a mere 15 months against a municipality — before they even knew they had an undiagnosed cancer or other condition.

The Assembly had, in prior years, passed the bill. The obstruction was in the Senate.

A couple hours ago, though, the Senate passed the bill. Or at least a version of the bill.

While the original version related to discovering malpractice in general, the Senate version is restricted to undiagnosed cancers and other malignant tumors.

This is a victory for consumers no doubt, in that some of them won’t have the courthouse doors slammed in their faces before even being aware they had any rights to begin with.

The law is named for Lavern Wilkinson, who went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the x-ray. But Wilkinson wasn’t told.

When it was found again two years later when her complaints worsened, the 15-month statute of limitations had expired. As per the Daily News summary of the incident:

A chest X-ray found the cancer had spread to both lungs, her liver, brain and spine. The disease was now terminal.

She left behind family including an autistic daughter.

The bill had bipartisan support, and passed the Senate by a vote of 55 to 6.

Reconciliation with the Assembly is next, and assuming that happens, on to the Governor for signature.

The extension of the statute of limitations is not forever, of course. It starts to run from the date of discovery, and the time to start suit will end seven years later, even if the cancer is not discovered.

This is all very good for New York’s residents. Should they fall victim to malpractice, they have to worry less about being victimized a second time by an unjust civil justice system.

Updated: The Assembly has now passed the same bill. It goes to the Governor for signature.  He had previously been a supporter of the law.

 

May 17th, 2017

It’s Time to Pass Lavern’s Law (Updated)

There is little that can be more infuriating on the civil side of the law than people losing their rights before they even knew you had them.

But such is the state of the law in New York, where the statute of limitations in medical malpractice matters is calculated from the time the incident occurs — not from the time the person found out about the conduct.

‘Scuse me while I put on my advocacy hat for a moment. This won’t take long.

New York is in a deep minority of just six states that measures the time to sue from the date of the malpractice, and this hits people particularly hard if they have undiagnosed cancers.

Lavern Wilkinson, for whom the law is named, went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the x-ray. But Wilkinson wasn’t told.

When it was found again two years later when her complaints worsened, the 15-month statute of limitations — you read that right, people sometimes have a paltry 15 months to discover the malpractice, hire a lawyer and bring suit — had expired. As per the Daily News summary of the incident:

A chest X-ray found the cancer had spread to both lungs, her liver, brain and spine. The disease was now terminal.

She left behind family including an autistic daughter.

That 15-month statute of limitations, by the way, is for city hospitals. For others, it is 2 ½ years.

But you know what? The problem still exists. Think about this: Pap smears are done every 3 years. A misread abnormal Pap that isn’t picked up until the next one? So sorry, you’re out of luck.

The curious thing about this bill, currently pending before the New York legislature, is that it enjoys wide bi-partisan support. There is no conceivable reason why the substantial burdens of medical negligence should fall to the patient and the patient’s family. None. Zero. Nada.

And you know what else? If the hospital was private, and continues to get immunity for its conduct, it is you the taxpayer that picks up part of those costs. You. Not the hospital that was negligent.

But the bill has never been brought to the floor for a vote.

Want to do something constructive today? Contact your New York Senator or Assemblyperson and let them know that this bill should be brought to the floor for a vote.

In the Assembly, the bill is A. 3339. (Updated: The bill was reported from the Assembly Codes Committee to the floor.)

In the Senate, the bill S. 4080. (Updated: The bill is stalled in the Senate — so if you make one call, it should go to your Senator.)

And yeah, the next victim could be you. Or me. And we may not even know it.

Updated: A June 5, 2017 editorial from the NY Daily News: Legislative malpractice: Doing right by Lavern Wilkinson:

…At last count, there were 39 sponsors in the 63-member Senate, which has passed the state Assembly and would easily do so again…

The Democratic-led Assembly passed Lavern’s Law and is poised to do so again this year. Gov. Cuomo pledges his signature. But in the GOP Senate, with the bill opposed by the well-heeled Greater New York Hospital Association, [John] Flanagan has made it a dead letter, never letting it get to the floor.

The bill is carried by Republican John DeFrancisco, the Senate’s No. 2. He can — and should — file a motion for full chamber consideration, which under Senate rules requires the support of “three-fifths of members elected.” That’s 38 senators. This bill has, we repeat, 39 sponsors.