On June 21, 2017, the New York State Legislature passed a bill
that will help ensure misdiagnosed cancer patients have an opportunity for their
day in court.
Under existing law, a medical malpractice patient must file
a lawsuit against a physician who has committed malpractice within two and a
half years of the “negligent act” or the patient’s claim will be forever barred
from legal recourse. The current law significantly limits a patient’s ability
to hold a physician accountable for malpractice because a misdiagnosis can
occur without the patient being aware of the error for several years.
For example, a radiologist may
read an imaging study as negative for cancer, but three years later, the patient
has a fatal cancer that has been left untreated as a result of the
radiologist’s negligence in reading the study three years earlier. Under this
scenario, the patient’s medical malpractice claim would be barred because it
was not commenced within two and half years of the malpractice occurring.
Under the new bill, called Lavern’s Law, the window to bring
a medical malpractice case involving cancer or malignant tumors begins when the
patient discovers the physician’s negligence, not when the negligence occurs. If the Governor signs this new bill into law,
the patient in the above example would be able to bring his or her claim.
The bill’s namesake is Lavern Wilkinson. Ms. Wilkinson died
in 2013 at the age of 41 from a form of lung cancer that could have been cured
if her doctors did not initially misdiagnose her cancer. Lavern Wilkinson was
not allowed to sue the doctors who misdiagnosed her curable lung cancer because
the misdiagnosis was discovered after the time period current law permits
victims of malpractice to bring suit. At
the time of her death, Ms. Wilkinson had a 15-year old developmentally disabled
child with autism who required round-the clock care.
"A step in the right direction"
“This is a step in the right direction,” according to Joseph
Manna, a senior partner at the law firm of Lipsitz Green Scime Cambria LLP.
“Every year, we are asked to review many cases involving clear cut cases of
misdiagnosed cancer, but nothing can be done because the negligence happened
more than two and a half years before the patient even knew they had cancer.”
In a recent Buffalo Law Journal article, Mr. Manna wrote about a man who contacted him recently. This man received medical care at his local hospital and, four years later, found that the physicians has missed the signs of his colon cancer. Because of the time limit the current law mandates, Mr. Manna was not able to pursue his case and the man died three months later.
“If this new bill is signed by the Governor, it’s some good
news for people who could use it,” Mr. Manna said. “They are too often turned away by the legal
system even though they need its help and they were clearly injured by physician
negligence,” he continued.
Mr. Manna explained, “The only problem I see with the bill
is that it does not cover all malpractice victims. It only covers cancer
related malpractice because of compromises that had to be made with opponents
of the bill, led by the insurance lobby.”
Who to call
If you or a loved one have been affected by medical
Lipsitz Green Scime Cambria. Joseph Manna and all the firm’s medical malpractice attorneys have the knowledge and
resources necessary to assess your case and get you the results you deserve. To
speak with Mr. Manna, please call 716 704 2100.
This article does not purport to give legal advice and is for informational purposes only.