If you are not feeling well, seek medical treatment and reasonably expect your condition to be correctly diagnosed and treated. However, it is not always that simple. According to Kaiser Family Foundation Health News, 7.4 million people are misdiagnosed in emergency rooms in the United States every year. This startling statistic shows that many people are not promptly diagnosed with the condition they have and may even be receiving treatment that is harmful to their health because the prescribed treatment is for a medical condition they do not have.
Patients in these situations have the right to file medical malpractice claims against the negligent healthcare providers who caused their misdiagnoses. However, New York’s short statute of limitations often meant that cancer patients would not have enough time to file a medical malpractice lawsuit before the statute of limitations expired. Fortunately, the Assembly passed Senate Bill S6800, also known as Lavern’s Law, in Jan. 2018 to allow for more time for patients to file a medical malpractice case after a missed cancer diagnosis.
Here is everything you need to know about Lavern’s Law and how it can affect your medical malpractice lawsuit.
Overview of Lavern’s Law
Lavern’s Law updates New York State’s statute of limitations for certain medical malpractice lawsuits. A statute of limitations is the time limit for someone to take specific legal action. Under the former law, the statute of limitations clock began when the negligent act that gave rise to the cause of action occurred. In cancer misdiagnosis cases, this would be the day that the cancer was misdiagnosed.
Lavern’s Law changed the statute of limitations for some instances, so the statute of limitations begins when the misdiagnosis of cancer is discovered, thereby allowing cancer patients to potentially seek financial compensation for their medical treatment, lost wages, pain, suffering, and other damages past the time the former law allowed for.
Purpose of Lavern’s Law
A proper cancer diagnosis is a lifeline for many patients. When healthcare professionals diagnose cancer at an early stage, the cancer might not spread to other parts of the body and cause further harm to the patient. The patient may survive and possibly be able to avoid more invasive and destructive forms of treatment.
However, if medical professionals act negligently and fail to diagnose the patient properly, the cancer can spread. This failure can lead to bleak outcomes for these cancer victims. For example, the Centers for Disease Control and Prevention provides the following five-year survival rates for common types of cancer based on whether the cancer was discovered at an early stage or later stage:
- Breast cancer – 98% early stage; 32% later stage
- Prostate cancer – 100% early stage; 34% later stage
- Colorectal cancer – 88% early stage; 16% later stage
- Lung cancer – 58% early stage; 8% later stage
Cancer is an insidious disease. It can often spread without causing any noticeable symptoms. Therefore, if medical providers do not recognize symptoms when they first manifest, the cancer can spread. In some cases, the statute of limitations would run out before the patient had even discovered the cancer, leaving them without recourse to hold the medical professionals accountable for their negligent failure to diagnose the cancer.
Lavern’s Law extends the applicable time limit so that more cancer patients who have been misdiagnosed can hold negligent healthcare providers responsible for their life-altering medical errors. The goal of the law is to provide justice to individuals by altering when the statute of limitations will run. Additionally, lawmakers hoped that the change in law would motivate “health care providers to provide more thorough care.”
Importance of Lavern’s Law in Medical Malpractice Cases
Lavern’s Law represents an important shift in the law and a change that the medical community fought for some time. New York has one of the strictest medical malpractice statutes of limitations. The 2.5-year statute, or 30-month statute, gives medical malpractice victims just two-and-a-half years to file medical malpractice actions against negligent providers. Historically, the statute of limitations began on the date the negligent act occurred.
The situation was even more dire for medical malpractice victims who were treated at a municipal hospital or government-owned healthcare facility. In these situations, patients would only have 90 days from the date of the injury to file a Notice of Claim with the hospital or healthcare facility and the government agency responsible for handling legal claims against the agency. Then, the patients would have to file a cancer misdiagnosis lawsuit within one year of the date of the injury.
Lavern’s Law provides an exception to the statute of limitations and serves as a discovery rule. Before the law was enacted, New York was only one of six states without a discovery rule of this nature. Under the current statute, medical, dental, or podiatric malpractice claims involving a failure to diagnose cancer or a malignant tumor can be filed within two and a half years of discovering the malpractice.
How Lavern’s Law Changes the Statute of Limitations in Medical Malpractice Cases
Lavern’s Law tolls or pauses the statute of limitations until the later of one of the following:
- The date the patient knew or reasonably should have known of the negligent failure to diagnose cancer or a malignant tumor and that the healthcare provider’s negligent act or omission caused the injury
- The last treatment date of continuous treatment for the condition that created the cause of action
In any event, the patient must take legal action within seven years of the negligent act or omission or the last treatment in cases involving continuous treatment. If the cause of action is due to a foreign object left in a patient’s body, the lawsuit can be filed within one year of discovering it.
Here is an example of how the statute of limitations changed:
Suppose Abigail complained of a chronic cough, breathing difficulties, and chest pain that would not go away when she went to the emergency room on Jan. 1, 2024. The medical team failed to run crucial tests at the time, diagnosing her with a respiratory infection and failing to diagnose her lung cancer. Abigail returns to the hospital on Jan 1, 2027, this time spitting up blood and experiencing excruciating pain. The hospital correctly diagnoses her now with lung cancer.
Under the old rule, Abigail could not file a medical malpractice claim because she was limited to two and a half years from her initial treatment date. The statute of limitations expired on July 1, 2026. However, under Lavern’s Law, Abigail now has until July 1, 2029, to file her claim because the statute of limitations does not begin until the date she discovered the medical malpractice errors.
Case Studies Impacting Lavern’s Law
The most important case study is of the woman for whom the statute is named, Lavern Wilkinson. Lavern Wilkson arrived at the Kings County Hospital in Brooklyn, New York, complaining of chest pain in Feb. 2010. Doctors ordered a chest X-ray and an EKG. A radiologist noticed a suspicious two-centimeter mass in her right lung, but no one provided Wilkinson with the results. Had she been notified, Wilkinson likely could have survived the lung cancer with surgery. Instead, a first-year resident instructed her to go home and take Motrin.
Wilkinson, a single mother, returned to the same hospital in May 2012 with a chronic cough. A chest x-ray found the cancer had spread to both lungs, her spine, liver, and brain. The condition was considered terminal, and Wilkinson was given six months to a year to live. An attending physician at the hospital admitted that the hospital had made a mistake with the diagnosis during her earlier visit.
During the last few months of her life, Wilkinson began researching and filing a cancer misdiagnosis claim against Kings County Hospital. However, the statute of limitations had expired against the municipal hospital.
Wilkinson died due to a medical malpractice error in March 2013 at age 41. She left behind a 15-year-old child who had autism and other disabilities.
Had the current law existed during Wilkinson’s second visit, she would still have had time to file a lawsuit against the hospital. The statute of limitations would not have started until 2012, when Wilkinson discovered medical negligence. She could have received monetary compensation to pay for long-term care for her and her daughter. Before dying, Wilkinson expressed her desire that other families would not have to endure what hers did.
Lavern Wilkinson’s case is sadly not the only one of this nature. New York medical malpractice victims have long suffered due to the state’s strict statute of limitations. Another woman, Elissa McMahon, was diagnosed with stage 4 uterine cancer in 2014. She learned that a Manhattan hospital pathologist had failed to spot lesions that indicated cancer in at least ten of the 40 slides the hospital had taken of her in 2012. When she contacted a medical malpractice lawyer, she was informed that the statute of limitations had expired before she realized she was sick.
Jennifer Estrella met with lawmakers in 2015 who were trying to pass Lavern’s Law at the time and described how she was not informed about a mass on her liver after a CT scan in 2012. The radiologist had alerted doctors of the finding, but no one told Estrella.
Michael Dreifuss shared his story with lawmakers about how his wife died of breast cancer in 2008 due to a cancer misdiagnosis in 2005.
What to Do If You Suspect Medical Malpractice After a Cancer Misdiagnosis
Unfortunately, not all instances of cancer are caught promptly. Make sure you follow up with your doctor after all your tests and inquire about the findings. If you suspect that you are a victim of malpractice, consider taking these steps to protect your legal rights:
Seek Care from Another Doctor
Your health is the most important priority. If your primary doctor or treating specialist has done anything that makes you uncomfortable, your complaints are ignored, or they have not properly diagnosed your medical condition, seek attention from another doctor immediately. Your new doctor may be able to provide life-saving treatment. They can also begin assembling records that can help establish the connection between your misdiagnosis and the harm you have experienced.
Ask for a Copy of Your Medical Records
In a non-confrontational way, ask for a copy of your medical records. You do not need to speak to your former doctor directly for this request. Do not allege medical malpractice at this time. This step is just to gather evidence that your medical malpractice attorney can use to begin building your cancer misdiagnosis claim.
Document Your Journey
Write down important details about your case to document your experience. Include information such as:
- Treatment dates
- Comments from your medical providers
- Details about tests you took
- Dates you began experiencing symptoms
- Details about the symptoms, their severity, and their frequency
- How the misdiagnosis has affected your life
Speak to an Experienced Medical Malpractice Lawyer
You are experiencing so much turmoil in your life right now after a cancer misdiagnosis. A lawyer can take the steps necessary to protect your rights by taking legal action within the statute of limitations that applies to your case. Work with a personal injury attorney who has experience handling medical malpractice cases.
This is a highly specialized area of the law. You need an advocate who understands its complexities and knows how to build a strong claim on your behalf. A medical malpractice lawyer can review your medical records, consult with medical experts, and identify all the healthcare providers accountable for your misdiagnosis.
Contact Our Cancer Misdiagnosis Lawyers for a Free, Confidential Consultation
If you believe your cancer was misdiagnosed due to medical errors, contact the experienced legal team at Powers & Santola, LLP. Call us at (518) 720-6188 to discuss your case during a free and confidential case consultation.
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