Lavern’s Law Extends Statute of Limitations on Cancer-Diagnosis Malpractice Cases

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RIP Lavern Wilkinson

Nearly three years after Kings County Hospital sent Lavern Wilkinson, a Brooklyn mom, to an early grave because of medical negligence, New York State legislators have finally revised a cruel New York State law that robbed her of her right to seek legal redress for the deadly medical malpractice that killed her.

Lavern was not the only victim of this cruel law.  Thousands of victims of malpractice have been denied their right to compensation by this arcane New York State law.

But for now let’s just talk about Lavern Wilkinson.  At only 41 years of age, she died in March 2013 from a curable form of lung cancer.  She was walking around for years with this curable cancer, as it grew and took over her body, because doctors at a City hospital emergency room failed to tell her a chest X-ray they took in 2010 showed a small, suspicious mass on her right lung. Instead, they sent her home coughing with just Motrin.  By the time she was diagnosed with cancer, the cancer was ravaging her body.

And her Statute of Limitations for suing the doctors had expired.  That’s because the statute of limitations — under the cruel statute — started to run when the malpractice occurred, not when she discovered it had occurred.

Lawyers for Wilkinson, a former home health aide and devoted single mom, nevertheless attempted to sue those responsible for this gross error (the hospital was owned by the City of New York) so that she could provide for the autistic child she would leave behind.  But her access to Court was blocked.  The lawsuit was filed “too late” even though it was filed right after she discovered she had cancer.

The statute of limitations ran out on poor Lavern Wilkinson before she even knew she had been harmed.

After an intense lobbying by New York personal injury lawyers and many other public health advocates, a legislative agreement was reached just yesterday to amend the law.  The Governor will be signing the bill very soon. The amended version of the law will  start the statute of limitations running not from the date of the malpractice, but rather FROM THE DATE THE VICTIM DISCOVERED OR SHOULD HAVE DISCOVERED THE MALPRACTICE.  A malpractice victim will have two and a half years from the “DATE OF DISCOVERY”  to sue.

The outside time limit to sue, though, is seven years from the malpractice.  So those unfortunate enough to discover their cancer – and the mistake in failing to diagnose it – more than seven years after the malpractice are unfortunately still out of luck.

Also unfortunate is that the new law applies only to cancer victims.  That’s unfortunate because other types of medical malpractice are not discovered until much later, too.

Still, this new law is great news for those who believe in civil justice.  It is a step in the right direction.  Bravo to our New York State legislators and governor.

Keep safe!
Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!
michaels-smolak.com
Syracuse NY Medical Malpractice Lawyers
Michaels & Smolak, P.C.
315-883-2264

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