This column has long decried the gross injustice inherent in the New York statute of limitations for medical malpractice actions insofar as it permits them to sometimes be rendered untimely even before the putative plaintiffs knew they had been injured. This legal anomaly existed because this state was one of only a handful of jurisdictions in the country to not apply a discovery rule in medical malpractice actions—a rule that generally permits the period of limitations to commence to run when the patient knew, or reasonably should have known, of the injury and its cause.
In 1986, the Legislature passed CPLR 214-c, which established a discovery rule for injuries resulting from exposure to toxic substances. However, the only discovery rule applicable to medical malpractice actions has been limited to foreign objects left in patients during surgical procedures.
As a result, many victims of medical malpractice have, through no fault of their own, had the courthouse doors closed to them. They have been deprived of any opportunity to seek compensation for injuries caused by someone else’s negligence. They were essentially twice victimized—first by medical professionals upon whom they relied for care and then by the system of laws upon which they relied for justice. These patients and their families have experienced exasperating frustration and sometimes ruinous financial consequences.
Without question, the greatest harm from the absence of a discovery rule has been in cases involving negligent delays in diagnosing cancer. Now, after literally decades of failed efforts to right this wrong, the cause of justice has been successfully championed. Effective Jan. 31, 2018, New York has adopted a discovery rule applicable to medical malpractice actions stemming from failures to timely diagnose cancer or a malignant tumor.
This long overdue legislation has become known as “Lavern’s Law,” so named for Lavern Wilkinson, a 41-year-old woman who died of lung cancer in 2013 and was survived by her disabled daughter. Three years earlier, an X-ray taken at a municipal hospital revealed a suspicious mass in Wilkinson’s right lung, but she was never told about it and did not learn of its existence until after the statute of limitations expired.
This legislation has taken a long and arduous path to become law. The bill, S.6800/A.8516, was originally passed by the Senate and the Assembly in June 2017, and it was limited to cases involving failures to diagnose cancer and malignant tumors. However, the Governor would only agree to sign it if the Legislature agreed to chapter amendments—changes to the bill originally passed by the Legislature—which primarily pertained to the provisions involving application of the legislation to negligence that occurred before the law’s effective date.
The bill amends CPLR 214-a, which is the statute of limitations applicable to medical malpractice actions generally, and creates a new subparagraph in CPLR 203(g), applicable to the state and municipal defendants.
The impact of the amendment to CPLR 214-a is that in cases involving failures to diagnose cancer or a malignant tumor, the two-and-a-half year statute of limitations begins to run from the later of either the last treatment (where there is continuous treatment), or when the patient knows or reasonably should have known of the alleged negligence and knows or reasonably should have known that it caused injury. However, where a plaintiff relies upon the discovery rule, there is a seven year repose provision. This means that for any action as to which timeliness is premised upon the date of discovery, there is an outside limit of seven years from the date of the negligent act or omission to bring the action. In other words, negligence that occurred more than seven years before the action is commenced will not be timely under the discovery rule. The seven year repose provision does not apply to any actions claimed to be timely by reason of continuous treatment—that doctrine has never been the subject of a statute of repose, and the new legislation does not alter that.
Set forth in its entirety, the amended CPLR 214-a reads as follows (the significant portions of the new language are italicized for identification):
214-a. Action for medical, dental or podiatric malpractice to be commenced within two years and six months; exceptions. An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; provided, however, that: (a) where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; and (b) where the action is based upon the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within two years and six months of the later of either (i) when the person knows or reasonably should have known of such alleged negligent act or omission and knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than seven years from such alleged negligent act or omission, or (ii) the date of the last treatment where there is continuous treatment for such injury, illness or condition. For the purpose of this section the term “continuous treatment” shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient’s condition. For the purpose of this section the term “foreign object” shall not include a chemical compound, fixation device or prosthetic aid or device.
The provisions of CPLR 214-a do not apply to state or municipal hospitals or clinics, which are subject not only to separate, typically shorter statutes of limitations, but also even shorter notice of claim requirements. These shorter time periods make a discovery rule even more vital for claims against public hospitals. It would also have been a bitter irony if Lavern’s Law did not apply to municipal hospitals, since the legislation’s namesake was injured at one.
The discovery rule applicable to such cases is contained in the newly created CPLR 203(g)(2), and it applies to both notice of claim requirements and statutes of limitations. Structurally, CPLR 203(g)(2) is virtually identical to CPLR 214-a. It states that “the time in which to commence an action or special proceeding or to serve a notice of claim shall not begin to run until the later of either (i) when the person knows or reasonably should have known of such alleged negligent act or omission and knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than seven years from such alleged negligent act or omission, or (ii) the date of the last treatment where there is continuous treatment for such injury, illness or condition.” Therefore, where a notice of claim must be filed within 90 days as a condition precedent to commencing a lawsuit premised upon a delay in diagnosing cancer, that notice is timely if served within 90 days of discovery (subject to the seven year repose), or within 90 days of continuous treatment (which has long been the law). Similarly, a lawsuit against a municipal hospital stemming from a delay in diagnosing cancer must be commenced within a year and 90 days of discovery or continuous treatment.
Two additional provisions of the new law warrant discussion, both of which were the subject of substantial changes in the chapter amendments from the bill as initially passed by the Legislature. The subject provisions all involved malpractice that occurred before the effective date, including a limited revival of claims that had already expired.
The original bill passed last June provided, in essence, that any person who first knew or should have known of a negligent failure to diagnose cancer or a malignant tumor and that it caused injury within the two-and-a-half years prior to the effective date of the new law, would have two-and-a-half years going forward to commence an action, subject to the seven year repose provision. This was significantly altered in the chapter amendments.
First, the chapter amendments provide that the act takes effect immediately, “and shall apply to acts, omissions, or failures occurring on or after such effective date.” As noted earlier, the effective date is Jan. 31, 2018. Therefore, any negligence in failing to diagnose cancer from this point forward is subject to the discovery rule.
Second, pursuant to the chapter amendments, the discovery rule also applies to negligent failures to diagnose cancer or malignant tumors that occurred prior to the effective date and that were still within the applicable statutory time period then in existence, exclusive of continuous treatment or any other toll, on the date the new law became effective. This is set forth in §6 of the chapter amendments, which indicates that the provisions contained in CPLR 203(g)(2) “shall also apply to acts, omissions, or failures occurring within 1 year and 90 days prior to the effective date of this act, and not before,” except that “for actions or claims governed by section 10 of the court of claims act such section one shall also apply to acts, omissions, or failures occurring within 2 years prior to the effective date of this act, and not before … .” With regard to non-public defendants, §6 of the chapter amendments indicates that the provisions contained in the amendments to CPLR 214-a “shall also apply to acts, omissions, or failures occurring within 2 years and 6 months prior to the effective date of this act, and not before.” Therefore, the discovery rule applies to failures to diagnose cancer that occurred: on or after Nov. 2, 2016 for cases against municipal defendants; on or after Jan. 31, 2016 for cases against the state; and, on or after July 31, 2015 for cases against private defendants.
The final provision of the new law that warrants discussion pertains to the revival of claims that had expired prior to its passage. As noted above, the original bill passed by the Legislature applied the discovery rule to any claims as to which negligence and causation were discovered two and a half years prior to the effective date of the new law, subject to the seven year repose. If signed into law, that would effectively have revived any claims based upon negligence that occurred on or after Jan. 31, 2011 and expired any time prior to Jan. 31, 2018, but was discovered during the two-and-a-half years before that effective date.
This version of the revival provision was eliminated in the chapter amendments and was replaced with a much more truncated revival. Section 4 of the chapter amendments provide that “with regard to any action or claim arising from alleged medical malpractice based upon an alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, which, within 10 months prior to the effective date of this act, became time-barred under any applicable limitations period then in effect, such action or claim may be commenced within six months of the effective date of this act, and not beyond.” Therefore, any claim for failure to diagnose cancer as to which the statute of limitations expired on or after March 31, 2017 and before Jan. 31, 2018 is revived and an action may be commenced on such claim up until July 31, 2018.
It should be noted that this revival is not contingent upon discovery. Section 4 of the chapter amendments indicates that CPLR 203(g)(2) and amendments to CPLR 214-a “shall not apply to such actions.” Instead, this is a revival of any failure to diagnose cancer claim which became untimely in the 10 months prior to the new law’s effective date. It should also be noted revival clauses included in remedial legislation have been consistently upheld by the New York Court of Appeals. See In re World Trade Center Lower Manhattan Disaster Site Litigation, 30 N.Y.3d 377 (2017); Rothstein v. Tennessee Gas Pipeline Co., 87 N.Y.2d 90 (1995); Hymovitz v. Eli Lilly & Co., 73 N.Y.2d 487, cert. denied, 493 U.S. 944 (1989); Robinson v. Robins Dry Dock Repair Co., 238 N.Y. 271 (1924); Matter of McCann v. Walsh, 282 App. Div. 444 (3d Dept. 1953), aff’d without opinion, 306 N.Y. 904 (1954).
It is most certainly a brighter day for the cause of justice in this state. An intolerable situation has been remedied for some of the most tragic malpractice cases. However, it must be emphasized that continuous treatment will remain a critical component of statute of limitations evaluations in many malpractice actions involving failures to diagnose cancer. Putting aside the seven year repose on the discovery rule, there will be circumstances in which patients learn of negligent delays in diagnosing cancer or tumors but continue to receive treatment from the responsible physicians or medical groups. In those cases, the continuous treatment may extend the statute of limitations beyond discovery. That is why the legislation affords the patient of whichever is longer between discovery and continuous treatment. Fact specific determinations must be made in each case, including such factors as the strength of a claim of continuous treatment and when the patient knew or reasonably should have known of the malpractice and causation. This much is certain—patients who have suffered negligent delays in diagnosing cancer will have better access to justice.
Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.