Sept. 4, 2020
Lavern's Law (Failure to Diagnose Cancer)
On January 31, 2018, Governor Andrew Cuomo signed into effect what is known as “Lavern's Law”. Significantly, Lavern's Law extends the medical malpractice statute of limitations (the time within which you have to file a lawsuit), in failure to diagnose cancer cases, by applying a date of discovery rule. The revised rule (CPLR 214-a) states that, in an action based upon the negligent failure to diagnose cancer, the action can be started within two years and six months (30 months) of the later of either (1) when the person knows or reasonably should have known of the alleged negligent act or omission and knows or reasonably should have known that the alleged negligent act or omission has caused injury (no later than seven (7) years after the alleged negligent act or omission), or (2) the date of the last treatment where there is continuous treatment for such injury, illness or condition which gave rise to the said act, omission or failure. Lavern's Law may be a very significant improvement for cancer patients who believe that they have a claim, especially against a state or municipal hospital or clinic, which generally has a very short statute of limitations.
Lavern's Law was named after Lavern Wilkinson who died at age 41 from a treatable form of lung cancer. Ms. Wilkinson was seen at a New York City municipal hospital complaining of chest pain and a chest x-ray was performed which was interpreted by a radiologist as showing a suspicious mass in her right lung. She was not informed of this finding until over two years later when she returned to the same hospital complaining of a chronic cough. By the time the cancer had spread to both lungs, her liver, brain, and spine, her condition was terminal and it was beyond the time allowed to make a claim against the city. Ms. Wilkinson, a single mother, passed away leaving a disabled, autistic daughter who required full-time care. Her attempt to pursue a medical malpractice lawsuit was dismissed as untimely but paved the way for the amendment to the law, named after Lavern.