On June 21, both houses of the New York state legislature passed a limited version of Lavern's Law, a measure intended to protect the rights of people injured due to medical malpractice.
Under the new law, the statute of limitations for medical malpractice cases involving cancer or malignant tumors will begin when the patient discovers the error, rather than when the original error occurred as under current law. Patients will generally have 2½ years from the date of discovery to take legal action against the medical provider.
The original version of Lavern's Law, which passed the Assembly two years ago, would have applied to all malpractice cases, but that version never made it to the Senate floor for a vote. The restricted version is waiting for the signature of Gov. Andrew Cuomo, who previously said he would sign the original version of the law.
Syracuse malpractice attorney and former judge John C. Cherundolo praised the measure.
"The situation under current law can only be described as a failure of the justice system," said Cherundolo. "In too many cases, cancer patients who were misdiagnosed were left without legal options because the window closed while they didn't know they were sick -when the whole issue was that doctors had failed to identify or notify them that they were sick."
Cherundolo, particularly in his capacity as a past president of the New York State Academy of Trial Lawyers, has been involved in advocacy for reforms like Lavern's Law for years.
"Lavern's Law, even this restricted version, will send a strong message to oncologists and the medical establishment as a whole that they will be held accountable," he said.
Lavern's Law was inspired by the case of Lavern Wilkinson, a Brooklyn woman who died in 2013 of a treatable form of lung cancer after being misdiagnosed by doctors at Kings County Hospital. She tried to take legal action against the hospital, but the statute of limitations had expired. Unlike previous versions of the law, the version that ultimately passed in Albany does not include a one-year window to reopen cases that are time-barred under current law, an omission that Cherundolo strongly condemned.
"Families like the Wilkinsons, who have been through so much loss already, have sacrificed a great deal to advocate for this law and protect other families. It's deeply disappointing that they still will not have their own opportunity to seek justice."
According to Cherundolo, more still needs to be done to protect the rights of patients.
"There are many other medical errors that are sometimes not discovered by the patient for months or years after the fact - it's not just cancer treatment," Cherundolo said. "We need to continue to advocate for patients and extend these protections to victims of all types of malpractice throughout New York."
