ALBANY — Gov. Andrew Cuomo and legislative leaders have reached an agreement on a controversial bill that would extend the amount of time in which a patient can file a medical malpractice lawsuit for a missed cancer diagnosis.
The agreement on Lavern’s Law—named after Lavern Wilkinson of the Bronx, who died in 2013 at the age of 41—puts to bed concerns by hospitals, physicians and medical malpractice insurers that there would be an influx of lawsuits costing them millions of dollars.
The bill, which was approved by lawmakers during the last few days of the legislative session in June 2017 but had awaited the governor’s signature, would start the clock on when patients can bring medical malpractice cases involving cancers or malignant tumors from when the error is discovered by the patient, instead of when the misdiagnosis occurred, as is the case now.
The agreed-upon final version of the bill would change the statute of limitation to sue for a missed cancer diagnosis to two-and-a-half years from the time the patient discovers the misdiagnosis. Current law limits the window to 15 months after the misdiagnosis occurred, meaning some patients lost the right to sue before they even became aware of the misdiagnosis.
Under the agreement, the two-and-a-half year statute of limitations would run from the date that the plaintiff knew or should have known of the negligence, instead of the date when the negligence occurred, with an outer limit of seven years from the date of occurrence, according to a news release from Cuomo’s office. The legislation and the amendments are expected to pass both houses as early as Tuesday.
Wilkinson, for whom the legislation is named, died in 2013 from a “treatable form of lung cancer.” Her doctors failed to tell her that a chest X-ray taken in 2010 showed a suspicious, two- centimeter mass on her right lung, according to the New York Daily News, which has written numerous editorials urging passage of the legislation. In May 2012, Wilkinson returned to Kings County Hospital in Brooklyn with a chronic cough. A chest X-ray found that the cancer had spread throughout her body. By the time Wilkinson learned of the doctors’ error in 2012, the statute of limitation for her to file a lawsuit had expired.
State Sen. John DeFrancisco, the deputy majority leader and sponsor of Lavern’s Law, had been pessimistic about the governor signing the bill.
“I had been pessimistic because it kept getting weakened and weakened and weakened and I had the distinct impression that it was going to get too weak and it wouldn’t be worth the effort,” DeFrancisco, R-Syracuse, told the New York Law Journal on Monday afternoon. “I think it’s a reasonable compromise. I would have liked the original bill better. But i’m just happy that now people do have some redress, in at least cancer cases, where they can bring suit if there’s negligence.”
DeFrancisco, who is expected to announce his bid for governor tomorrow, is of counsel at Syracuse-based personal injury firm DeFrancisco & Falgiatano.
For months, representatives from the influential Trial Lawyers Association and hospital trade groups—such as the Healthcare Association of New York State and Greater New York Hospital Association—have been in negotiations over the bill.
“Lavern’s Law is the result of an extremely committed coalition of advocates, courageous patients and their families and others who came together to address injustice. We will continue to work across New York to make our state fairer, safer and more equitable for New Yorkers of all walks of life,” said Matt Funk, president of the New York State Trial Lawyers Association.