New York’s medical malpractice statute of limitations is designed to protect the medical profession from having to take responsibility for the most grievous of medical malpractice errors. However, because New York is one of six states that does not have a “date of discovery” statute that starts the statue of limitations period from the date malpractice is discovered, many patients who are victim of misdiagnosis or failed diagnosis are at a disadvantage.
Consider the situation of Lavern Wilkinson, one of medical malpractice’s latest victims. She died in March because her doctors neither noticed nor treated her treatable lung cancer, leaving her dependent, mentally-challenged teenage daughter without a mother. Lavern went to Kings County Hospital two years ago because of a bad cough. Although lung x-rays were taken, hospital doctors did not inform Lavern about a malignant lung mass that could have been removed with surgery. After two years, Lavern’s breathing worsened, and she ultimately returned to the hospital for treatment. Doctors eventually discovered the mass, and said the hospital should have diagnosed the mass and informed her about her condition when it had initially occurred two years. The doctors added that due to the delay of diagnosis and subsequent lack of treatment, her life expectancy was now between 6-12 months.
Under New York’s current medical malpractice statute of limitations provision, Lavern was unable to sue the hospital for medical malpractice because her time to file began during her initial visit to the hospital—which resulted in the failed diagnosis. This is true even though she had no idea that the doctors had failed to diagnose her cancer. So her right to sue was denied even before she had any idea that she was a victim of malpractice. Because of this, she was not able to sue for her injuries and her daughter could not recover anything for the death of her mother.
According to New York’s medical malpractice statute of limitations, a patient can file a lawsuit or claim for medical malpractice no more than two and a half years from the time the malpractice occurs, or from the last date of continuing treatment related to the malpractice incident. However, if failure to diagnose or misdiagnosis occurs, a medical malpractice victim may not be eligible to take his or her case to court because the medical malpractice statute of limitations could expire by the time medical negligence is discovered.
Lavern’s story prompted “Lavern’s Law,” a proposed amendment to New York’s medical malpractice statute of limitations that would start a person’s time to sue when she knew or should know of the malpractice. This proposed law was recently not passed by state representatives in Albany. This law would have expanded New York’s medical malpractice statute of limitations, and would have allowed medical malpractice victims such as Lavern the ability to sue in cases of misdiagnosis or failure to diagnose. Lavern’s Law would have started the statute of limitation clock from the time Lavern discovered that medical malpractice had occurred.
If you—or someone you know—is a victim of medical malpractice, it is important to act quickly in order to meet New York’s medical malpractice statute of limitations. Ronemus and Vilensky’s experienced New York medical malpractice attorneys can help inform you of your legal actions and options before your time to file a claim or lawsuit runs out. Contact us today for a free consultation.