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Peter A. Kolbert and Andrew S. Kaufman. Courtesy photos.

On June 21, 2017, the New York state legislature passed “An Act to Amend the Civil Practice Law and Rules, in Relation to Accrual of Causes of Action for Medical, Dental and Podiatric Malpractice.” Better known as “Lavern’s Law,” this bill—if signed into law by Gov. Andrew Cuomo—will change the statute of limitations for medical malpractice cases related to the misdiagnosis of cancers and malignant tumors. NY Bill No. A00285A. (The bill seeks to accomplish a number of other objectives, such as reviving stale claims, applying the discovery rule to cases falling under the continuous treatment doctrine, though it contains some technical drafting issues certain significant sections of it ambiguous.) Lavern’s Law is named for Lavern Wilkinson, a single mom, who died from lung cancer in 2013 at age 41. Wilkinson’s case originated in 2010, when she presented to Kings County Hospital complaining of chest pain. H. Evans, “Lavern Wilkinson, victim of medical malpractice, dies of the cancer that could have been treated” NY Daily News, March 7, 2013. A chest X-ray revealed a mass on Wilkinson’s lung, but providers failed to inform her about the findings or treat the tumor. By the time Wilkinson was properly diagnosed in 2012, the cancer had spread and was incurable. Wilkinson filed a medical malpractice suit against Kings County Hospital, but the statute of limitations for bringing such a suit—which at municipal hospitals is 15 months from the date of the alleged malpractice—had expired. The dilemma therefore presented was that by the time Wilkinson discovered she might have a legal claim, the statute of limitations had already run.

Wilkinson’s case received widespread media attention in New York City, resulting in a push to provide patients with more time to file suit for alleged malpractice related to “failure to diagnose” cases. At issue was the date from which the statute of limitations is calculated in New York state.

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