Gov. Andrew Cuomo signed a new law this week that will extend the amount of time an individual can file a lawsuit for a missed cancer diagnosis.
Bill S.6800/A.8516, known as “Lavern’s Law,” will allow for an extended window of two and a half years for patients to bring malpractice cases involving cancer to court after the patient discovers the malpractice.
The previous law only allowed for 15 months from the date of the misdiagnosis. In many cases, patients did not even learn about the error until the statute of limitations had already passed.
The legislation is named for Lavern Wilkinson, a Brooklyn woman who died in 2013 following a battle with lung cancer that was misdiagnosed. Under Lavern’s Law, patients will now have the right to sue for a missed cancer diagnosis for two and a half years after they learn of the diagnostic error.
“No one should have to go through what Lavern Wilkinson and her family experienced and I’m proud to sign this legislation that rights this wrong in the law and provides new protections and peace of mind to New Yorkers seeking care,” Cuomo said.
The death of Wilkison, 41-year-old single mom of a developmentally disabled and autistic child, was a call to action for better patient protection.
“Families of cancer patients already endure too much loss and heartbreak, and without accountability, the current law imposes additional burdens upon them,” said attorney Matthew Funk, president of the New York State Trial Lawyers Association and a senior partner at Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. “This legislation will help bring justice to cancer victims and restore hope to their loved ones.”
The bill was sponsored by Sen. John DeFrancisco and Assemblywoman Helene Weinstein, who emphasized the humanitarian aspect of Lavern’s Law, calling the former law an “overly restrictive” system.
“We have heard far too many heartbreaking stories about cancer patients like Lavern Wilkinson who have been misdiagnosed only to be shut out of our legal system because of an overly restrictive law,” Weinstein said. “Learning that one has cancer is difficult enough, and I am thankful that we are strengthening our laws so that victims of medical malpractice will be able to have their day in court.”
In contrast, Tom Stebbins, Lawsuit Reform Alliance of New York executive director, said the new law will “only make matters worse and further increase the inflated cost of medical liability insurance for doctors and hospitals.”
Opposition is based on the concern that the law will have a detrimental impact on access to care for life saving practices such as cancer screenings. He referred to a a study published by the Radiological Society of North America, which found that nearly one in three radiologists contemplate avoiding mammography due to fear of litigation. Stebbins fears that figure will likely increase because of Lavern’s Law.
“Rather than make it easier for personal injury trial lawyers to file lawsuits, Gov. Cuomo and the Legislature must prioritize a complete overhaul of the medical liability system and put together a plan that works for patients, doctors, and hospitals alike,” Stebbins said.
