February 14th, 2019

Cuomo Signs Child Victims Act for New York

Today New York joined the growing list of states that allows victims of child sexual assault to come forward and bring suit for that assault, even if the attack is decades old. The law will also extend the statute of limitations on criminal actions.

On the civil side, the Child Victims Act will allow people to proceed up to the age of 55, where they claim that they were sexually assaulted as kids.

On the criminal side, the statute of limitations won’t start to run until the child has turned 23.

But the time to bring civil suits comes with a narrow window of 12 months.

The twin problems, as widely discussed in the press, is on the one hand the human desire to suppress traumatic memories because they are so painful. Such suppression may occur when the alleged assailant is an otherwise trusted individual such as clergy, family, friends or educators. This allows the statute of limitations to slip by.

The other problem, of course, is trying to prove that the assault actually happened long after witnesses and physical evidence may have vanished, and memories may have dimmed. Or that if it happened, it happened as described by the complainant.

Anybody who watched the Senate hearings to confirm Justice Kavanaugh (or Justice Thomas before that) knows how tough it is to sort through old evidence.

The legislative details of the bill are here.

The law had long been sought by Assembly Democrats in Albany, but was blocked by Republicans that controlled the Senate. With the blue wave that swept the nation this past election, the Democrats took possession of the Senate and the bill has sailed through.

The law will become effective six months from signing (today, February 14) and then run for one year. This time lag will give the judiciary time to examine the law and prepare for new cases and, one might expect, for a variety of continuing legal education classes to pop up for lawyers about how to handle them.

One should expect that, in mid-August, a flurry of new lawsuits will be brought under the new legislation.


 

January 2nd, 2018

Will Gov. Cuomo Sign Lavern’s Law?

Yes, a real case. Yes, the x-ray hangs in my office.

There is one bill on Gov. Andrew Cuomo’s desk from last year. Just. One. Bill.

There were 606 bills that passed by both of New York’s legislative houses. All have been signed, or vetoed.

Except for Lavern’s Law. A law that Cuomo previously stated that he supported and would sign.

It was finally sent to the Governor during the holiday week for signature. He has 30 days to sign it.

As I bang on this keyboard, it sits on his desk.

Lavern’s Law, for those that don’t know, mimics the law in 44 other states, extending the statute of limitations in certain medical malpractice cases from the time the discovery of malpractice was made, or could reasonably have been made, instead of when it occurred

In the final hours dickering over the bill last June, it was watered down to apply only to cancer cases, leaving all other “failure to diagnose” cases, where the patient didn’t even know s/he was victimized, hanging out in the cold.

But still, even in its watered down state, it is something for those that have not only been victimized by malpractice, but didn’t even find out until the time to bring suit had expired.

As I previously described it:

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.

Lavern Wilkinson, who lost her chance for justice before she even knew she had that chance.

The bill passed the Assembly. Then it passed the Senate 56-6, that being the tougher of the two houses.

Why hasn’t the bill been signed?

It can’t be due to insurance premiums because, after all, the state’s largest insurer is being sold to Warren Buffet because it’s so damn profitable.

And at just 2 ½ years for suits against non-governmental medical facilities, we already have one of the shortest statutes of limitations in the country (and 15 months against governmental facilities) since we have no date of discovery statute.

And with some of the lowest legal fees for attorneys, the medical community has already been granted widespread de facto immunity for most acts of malpractice — since taking smaller suits simply isn’t financially economical.

And it can’t be because of a lack of caps on malpractice cases, because we not only have them, but have had them for over 200 years.

New York has become, with some of the best medical care in the world, one of the absolute worst places with respect to finding justice when that care goes wrong.

And all this happens despite medical liability insurance premiums and premiums continuing to plummet, and the costs of insurance as a percentage of healthcare costs likewise continuing to drop. From a Public Citizen study in 2017 (The Medical Malpractice Scapegoat), look at these three charts:

Under what justification does a state close the courthouse doors on its citizens before they even knew they were injured?

Under what logic do we grant further immunity to those that commit preventable harms?

For what public policy reason do we continue to withhold justice?

This bill enjoys widespread support among voters, as demonstrated by the overwhelming vote in the Senate.

It is long past time that New York get a date of discovery law. There are no reasons not to do it.

Gov. Cuomo, please sign that bill.

See also (1/19/18): Lavern’s Law will also save New Yorkers money