A cancer misdiagnosis is one of the most frightening medical errors you can face. A missed diagnosis could mean loss of precious time in treating a disease you don't have while the disease you actually had goes unaddressed.
Under current law, patients who received a misdiagnosis sometimes had run out of time to file a medical malpractice lawsuit. The statute of limitations meant a patient had 15 months after the misdiagnosis occurred to file a lawsuit. In some cases, the legal window to file a claim closed before patients even knew they were injured.
But in a legislative move that will benefit patients who received cancer misdiagnoses, Gov. Andrew Cuomo and state lawmakers have agreed on an amended bill that would create a longer window of time to file a medical malpractice lawsuit. According to the New York Law Journal, the final version of what is known as Lavern’s Law will change the statute of limitations on filing a malpractice claim.
A longer timeframe to file a malpractice claim and seek justice
Under Lavern’s Law, patients can file a claim up to two and a half years after they find out about the error. The law was named for Lavern Wilkinson, a 41-year-old woman from the Bronx who died in 2013 of a treatable form of lung cancer.
Doctors at Kings County Hospital misdiagnosed her. They failed to tell Wilkinson that a chest X-ray taken in 2010 revealed a suspicious mass on her right lung. When she returned with a persistent cough in 2012, she received a chest X-ray that showed the cancer had spread. The doctor’s error was discovered, but she could not take legal action because the statute of limitations had expired.
Cuomo stated in a press release on Jan. 28: “No one should have to go through what Lavern Wilkinson and her family did, and this agreement will help protect cancer patients and their loved ones, while also addressing concerns from the medical field.”
The agreement comes after months of negotiations among representatives from the Trial Lawyers Association and hospital trade groups, according to the New York Law Journal. The New York Assembly passed an original Lavern’s Law two years ago that would have applied to all medical malpractice cases, but that version never made it to the Senate floor.
In June 2017, when the restricted version was passed by both houses of the New York state legislature, Attorney John C. Cherundolo applauded lawmakers for taking action, even if the measure was limited.
"The situation under current law can only be described as a failure of the justice system," Cherundolo said in a blog at the time. "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, a former judge and past president of the New York State Academy of Trial Lawyers, for years has been a champion of reforms like Lavern’s Law.
If you or a loved one is a victim of a cancer misdiagnosis, you have rights. Let our experienced attorneys help you on your path to justice. Contact Cherundolo Law Firm, PLLC and complete our online contact form for a free consultation.