New York Medical Malpractice “Date of Discovery” Bill, If Passed, Will End A Long-Standing Injustice In New York

I could write about the horrendous injustice of the current New York medical malpractice Statute of Limitations law myself, but never so eloquently as Elissa McMahon, one of the countless victims of the current barbaric statute-of-limitations rule and cheerleader for the proposed bill (“Lavern’s Law”) which would end the injustice:

Why We Need Lavern’s Law

By: Elissa M. McMahon

I am a 46 year-old single mom raising a 15 year-old son while I fight for my life against Stage 4 uterine cancer.  I’m worried about what will happen to me and terrified of what will happen to him when I’m gone.  Perhaps worst of all, it didn’t have to be this way. 

A little over four years ago, when I was 41, I had surgery at Lenox Hill Hospital to remove a uterine fibroid. I was told the pathology report confirmed that the fibroid was benign, and I returned with relief to my home and to my graduate studies. With my new degree, I became a social worker and Elder Care Advisor at a not-for-profit agency for senior citizens.   

I began developing back pain two years later, and after many attempts to figure out what was causing my pain, routine imaging studies brought my world crashing all around me. The first images showed that I had metastases in my spine, and later ones showed that metastases were also in my liver.  

Where had this cancer started?  

A liver biopsy performed two and a half years after my original surgery showed that the metastatic cancer cells in my liver were from a cancer that usually starts in the uterus.  

My doctors at Dana Farber in Boston promptly obtained the 2012 pathology slides from Lenox Hill Hospital. They quickly found that 10 slides from Lenox Hill showed clear evidence of cancer. 

A few months later, after consulting with my family, I decided to contact a medical malpractice law firm in New York. That’s when I was confronted with the shocking fact that under New York law, it was too late to seek restitution. In 44 other states, the time to bring such a lawsuit starts to run from the date that a patient discovers (or should have discovered) the malpractice. In New York State, the 2½ year time limit starts to run from the date of the malpractice. My 2½ years had expired just after Independence Day 2014 – before I even had a way to know I had cancer.  

During the last year and a half, I have heard many cancer stories.  In listening to these stories, I have learned that there are other victims of this nonsensical and utterly unfair law.  

But New York can change this. If Governor Cuomo and members of the New York State Legislature pass date of discovery legislation, the rights of medical malpractice victims like me will be protected – just like in 44 other states. Lavern’s Law will also incentivize hospitals and doctors to improve patient safety measures, making it less likely that others will suffer like I have. It’s a simple fix.  

Unless this law is changed, it will be too late for me too. I have already been through several rounds of radiation, multiple bouts of aggressive chemotherapy, and a major surgery to reconstruct the portion of my spine that had been eaten away by the cancer.  Unfortunately, some valuable treatments are not covered by medical insurance and I don’t have the personal wealth to pay out of pocket. 

The cancer has made it impossible for me to work.  I worry every day and every night about what funds will be there to care for my son – to pay for his college – when I can no longer be here to help him.  

How is it possible that the great state of New York is one of only six states in the entire nation that will not allow me to bring this lawsuit and, in doing so, provide some security for my child and give me a chance to try treatments that might make a difference?

Thanks for sharing Elissa.  Stay safe everyone.

Mike Bersani

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Syracuse NY Medical Malpractice Lawyers
Michaels Bersani Kalabanka



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