Lavern Wilkinson was a thirty something year-old single mom with mild chest pain. Being of a cautious nature, she thought to get the chest pain looked into. This eventually brought her to Kings County Hospital in New York City for chest x-ray. The results, she was told, were just perfect. Go home. Nothing to worry about.
Two years later, with more significant symptoms, and with the aid of another x-ray, she was diagnosed with advanced lung cancer. It had spread to other organs. She was terminal. Her doctors then looked back at that old x-ray and saw a nodule in its early stage. It was plainly visible. At that stage, it could have been easily removed surgically. She could have been cured.
Now, though, it was too late. But it was not too late – she hoped – for a lawsuit. After all, she was a poor single mother with an autistic 15 year-old daughter who was about to become motherless. Her daughter would need the compensation Lavern was entitled to. Her case, she figured, was a slam dunk.
When she went to see a New York medical malpractice lawyer, she learned her case was indeed a slam dunk. But not for her. For the hospital that had given her the death sentence. It was too late to sue.
Yes, the Statute of limitations for suing the municipal hospital was only a year and 90 days from the date of the malpractice. The time to sue was already long gone when she was told that the hospital had made a mistake two years earlier.
But wait! Not fair! How can that be? She didn’t stand a chance!
All true. New York’s law medical malpractice statute of limitations is totally unfair, especially when compared to the other states. Lavern learned that forty-four of the fifty states have a “date-of-discovery” rule for the statute of limitations in medical malpractice cases. In those states, the statute of limitations doesn’t even start to run till you learn of the malpractice. If New York had such a law, her statute of limitations would not have even started to run until she was told that that the nodule in the earlier x-ray had been missed. She would have had plenty of time to sue.
Lavern, with lots of help from many fair-minded people, lobbied to change that awful law, to make New York join the other 44 states that have a “date-of-discovery” rule in malpractice cases. They pushed for a law – “Lavern’s Law” – that would have enshrined the date-of-discovery rule in the New York code.
Unfortunately, Lavern died before she could see the Bill named after her come up for vote in the New York legislature. It passed in the Assembly with overwhelming bipartisan support. It got the Governor’s support. It had enough support to pass even in the conservative Senate. But then, like Lavern herself, it died. The Senate majority leader, John J. Flanagan, a Republican, wouldn’t allow the bill to even go to a vote in the Senate.
He single-handedly killed it.
But not quite single-handedly, really. A rational person does not vote a just law down without a motive. His motive was to fill his campaign coffers so as to ensure his future in his powerful Senate seat. A crowd of well-healed lobbyists from the health, insurance, and medical industries – who had and would continue to fund his campaigns – egged him onto kill Lavern’s Bill. These men and women – if they have a soul and a conscious — (I am told they do) must know full well that the current medical malpractice statute of limitations is harsh, unfair, and a travesty of justice. But they don’t care. Their job – their raison d’etre — is to crush any legislation that might enable medical malpractice lawsuits of any kind.
Now Lavern and her Law are both dead. And neither died of natural causes. Both were both killed – one through negligence and the other by murder.
Thank you Senator Flanagan and the lobbyists for your fine work.
Email me at: firstname.lastname@example.org I’d love to hear from you!
Michael G. Bersani, Esq.