Lavern’s Law would allow medical malpractice claims to be filed after the date of discovery of an illness or condition. The statute of limitations is the amount of time that an injured victim has to file a claim against a defendant. If a plaintiff does not file a claim within the time frame set by the statute of limitations, the plaintiff will not have the right to bring the case to trial except in special circumstances.
The current statute of limitations for medical malpractice lawsuits in New York states that a lawsuit must be filed within 2-½ years from the “date of malpractice or from end of continuous treatment rendered by the party or entity you intend to sue for a particular condition, illness or injury.” New York is one of the few states that does not have a date of discovery law which would extend the triggering date to the date that the malpractice should have been discovered.
Lavern’s Law would help victims of medical malpractice with conditions and illnesses that were not clearly evident until long after the malpractice (failure to diagnose the condition or disease, or some other form of medical malpractice) occurred. Lavern’s Law is named after Lavern Wilkinson, a woman who died from a curable form of lung cancer in 2013. Lavern had discovered the malpractice months after the statute of limitations had expired, which left her with no chance of legal recourse. As a result, Lavern could not receive any compensation for her preventable death, and did not have anything to leave for her only child. The bill that would have passed Lavern’s Law in the New York legislature died in June 2015. Nearly two dozen organizations are pleading for it’s revival.
Elissa McMahon is one such person who would benefit from Lavern’s Law. McMahon is a mother with stage four cancer that is advocating for the revival of Lavern’s Law. In 2012, McMahon’s pathology test was reported as negative. That proved to be a misdiagnosis nearly two years later. The current inflexible statute of limitations for medical malpractice in New York resulted in McMahon’s case being thrown out. “It hits you all of a sudden.” said McMahon, “I’m dying and I have nothing for Jack.” Clearly, the lack of ability for legal action has a strong effect on those who have been misdiagnosed with cancer. McMahon’s lawyer said “How could she possibly not have the right to bring a lawsuit when the statute of limitations ran [out] before she even knew she was sick?”
Changing the statute of limitations will likely be an enduring challenge. The last time a push was made to enact Lavern’s Law, the New York legislature finished its session before the law could come to the floor. Advocates are now trying to build support and will attempt to receive a hearing before the end of the current legislative session on June 16th.
