On January 31, 2018 Laverne’s Law was enacted giving victims of malpractice additional time to file a claim in missed cancer diagnosis cases. The bill was named for Laverne Wilkinson, a 41-year-old, single, Brooklyn mother who died in 2013 of a curable form of lung cancer after doctors at Kings County Hospital misdiagnosed her. By the time Wilkinson found out that she had been misdiagnosed, her window to file a lawsuit had already expired, leaving her with both terminal cancer and no recourse for clear medical negligence. She left behind a then 15-year-old autistic and developmentally disabled child who needs round-the-clock care.
Under the new law, cancer victims will be allowed to sue for malpractice within a 2 ½ year window that starts when the patient discovers the error, with a 7 year maximum from the date of the error. Under the old law, the clock for people to sue started when the medical error occurred, even in situations where the patient had no idea there had been any error. By way of example, a tumor showing on a patient’s CT scan in January of 2014 was missed and not reported to the patient who did not become symptomatic until January of 2017 when she was diagnosed with lung cancer. Under the old law her time to pursue a claim expired in June of 2016 before she had any idea she was sick. Under the new law, her 2 ½ year time limit would start to run in January of 2017 upon discovery of the mistake, or when a reasonable person should have discovered the mistake. The Law also revives claims that became time-barred in the 10 months before enactment of the law on January 31st, allowing those claims to be filed within six months of the effective date.
Application of the time limits in medical negligence cases can be tricky as the time limits can also be extended in other, limited, situations where the doctor continues to treat the patient for the same condition. If you believe you have been the victim of medical negligence, and have suffered a significant harm as a result, it is best to consult with an attorney who can assist you in evaluating your situation.