The failure to correctly diagnose cancer is the most common form of misdiagnosis that results in a medical malpractice claim. But because of the slow-moving nature of the disease, it can take years for a patient to discover that his or her cancer has been misdiagnosed. This leads to some cancers being harder to treat or, at times, untreatable by the time they are discovered.
Under New York law, it used to be that a patient had two and a half years from the time they were misdiagnosed to file a medical practice lawsuit. If a patient didn’t discover the diagnosis until years later, he or she was out of luck. Thanks to Lavern’s law, which was enacted on January 31, 2018, patients now have a better chance of pursuing compensation for a missed cancer diagnosis.
The law was named after Lavern Wilkinson, who died in 2013 at the age of 41 from a curable form of lung cancer after a misdiagnosis by doctors at Kings County Hospital. She left behind a 15-year old developmentally disabled child who required around-the-clock care. Lavern’s family was unable to recover for the doctors’ negligence because the misdiagnosis was discovered more than two and a half years after it occurred in 2010.
Lavern’s law now extends the amount of time in which a patient can file a medical malpractice lawsuit for a missed cancer diagnosis. The clock starts from when the error is discovered, or should have been discovered, by the patient, and not from the date the misdiagnosis occurred. Patients now have two and a half years from the date the negligence is found to file their claims. There is an outer limit of seven years from when the misdiagnosis occurred.
In addition, the law also includes a six-month window for people to bring a new medical malpractice claim if their previous statute of limitations ended less than ten months before the law was signed. This allows patients to revive expired missed cancer diagnosis claims as long as they file suit before July 31, 2018.
New York now joins the majority of states that have “discovery rules” when it comes to the statute of limitations in medical misdiagnosis claims. Lavern’s law, however, only applies in cancer medical malpractice cases and not in all medical malpractice cases.
If you or someone you love has suffered from a missed cancer diagnosis, you need an experienced attorney on your side. At Bonina & Bonina, P.C., we have over 50 years of experience helping New Yorkers with their cancer misdiagnosis claims. Contact us online or call us at 1-888-MED-LAW1 to schedule your free consultation.