How Can Lavern’s Law Help Cancer Patients?

Perhaps the only thing worse than a cancer diagnosis is a cancer misdiagnosis. A misdiagnosis can take many forms, but perhaps the worst is a doctor's failure to detect the presence of cancer.

In most states, victims have recourse against a doctor's medical malpractice with help from cancer misdiagnosis lawyers. However, in New York, a victim of a missed cancer diagnosis was often shut out of the courts by the statute of limitations.

The number of victims affected by this policy continued to mount until the death of a single mother due to a missed diagnosis led to a change.

Nearly one million people face a cancer misdiagnosis every year. However, most people do not discover this until it is too late to pursue damages against their doctors for their injuries or lost loved ones. It took a new law to change this situation for the better.

Before Lavern's Law, it was difficult to hold doctors responsible for these mistakes. When New York Governor Andrew Cuomo signed the law on January 18, 2018, it made this battle easier. Lavern's Law allowed more time to file lawsuits in cancer misdiagnosis cases.

What Is Lavern's Law?

Lavern's Law is a long-needed update to the statute of limitations for medical malpractice in New York. A statute of limitations is a time limit for victims to bring lawsuits. In previous medical malpractice actions, the statute was calculated from the date of the medical professional's negligent act. In cancer diagnosis cases, this was the date of the misdiagnosis.

The new rule starts the statute of limitations clock at a later time, allowing more victims and their families access to justice.

Who Is Lavern?

The law's namesake, Lavern Wilkinson, visited the hospital on February 2, 2010, with chest pain. The radiologist discovered a suspicious lump on her right lung, but Wilkinson never received advice or a referral for follow-up care regarding early-stage lung cancer.  

In 2012, she reported to the emergency room again, this time with a chronic cough. X-rays revealed the malignant tumor spread to both lungs. When she received follow-up imaging, cancer had also spread to her liver, brain, and spine. At that point, the cancer was terminal, and the doctors estimated she had six months to live. She died in 2013.

The statute of limitations for medical malpractice in New York is two-and-a-half years. During Wilkinson's illness, the statute of limitations was activated on the error date — despite when the patient discovered it. When she reported to the ER in 2012 and found cancer, there was no time to file the required notice of claim or a lawsuit. That eliminated any possibility of suing for damages. She died, leaving a disabled daughter without financial support.

If she had been allowed to sue, Wilkinson would have been entitled to pursue financial compensation that could have helped her daughter greatly. Some of her financial damages included medical costs and expenses, lost opportunities for gainful employment, and home care expenses.

But these financial damages are only part of what she could have been awarded. Non-financial losses are also considered when victims file claims for compensation. These losses include pain and suffering, loss of consortium, and loss of the ability to engage in normal activities.

Hundreds of thousands of people faced and continue to face cancer misdiagnoses, some of them more than once. Due to the wording of the statute of limitations, many were forced to face the overwhelming financial impact of a cancer misdiagnosis without the compensation they deserved.

Before Lavern's Law, New York was among just a few states that had such an anti-patient statute of limitations.

Before Lavern's Law

Wilkinson's case was not unique. Other patients faced the same issue with cancer misdiagnosis and highlighted the frequent failure to diagnose cancer. This fact and Wilkinson's fate started a campaign of changing the statute of limitations, so it doesn't begin until after the patient discovered the error.

This change is much fairer for patients. In some cases, medical errors take years to discover. By the time a patient discovers the error, they might have suffered serious harm due to the delay in treatment. When this happened, one question would arise: "Why do I have to pay for a professional's error when I had nothing to do with the mistake?".

Sadly, there was no other answer for a harmed patient than "Because it is the law.". Until that law changed, there was little to no recourse available for these patients and their families.

Why Was It So Important to Change the Law?

The law is supposed to offer justice. However, the statute of limitations did not allow Lavern to pursue the justice her situation demanded.

Having the statute begin when the negligent act occurred is a harmful policy because cancers can grow quite slowly and cause no noticeable problems until years after the negligent misdiagnosis. The result is irreparably harmed individuals and families with no recourse for the hurt they have suffered.

The policy of starting the clock when the negligence occurred (when the doctor failed to diagnose cancer) also leads to a governmental shield that protects sloppy and dangerous professionals from facing claims for compensation. This effect, in turn, can lead to an increase in missed cancer diagnoses.

How Can Cancer Be Misdiagnosed?

Cancer is typically misdiagnosed or missed in two ways: failure to order the appropriate tests or failure to interpret test results that indicate cancer. Common tests used to diagnose cancer include PSA tests for prostate cancer, mammograms for breast cancer, and biopsies for suspicious tissue. Imaging technology is also frequently used.

It is not always easy to diagnose cancer, but this does not excuse medical professionals from their duty of care for their patients.

Most Common Types of Cancer Misdiagnosis Lawsuits

Our medical malpractice lawyers have decades of combined experience working with clients who have suffered harm from a missed diagnosis of these diseases and more:

• Breast cancer
• Ovarian cancer
• Prostate cancer
• Bladder cancer
• Lung cancer
• Melanoma
• Thyroid cancer
• Leukemia
• Kidney cancer
• Uterine cancer
• Testicular cancer

Contact our office. We are ready to listen.

How Can Lavern's Law Affect Your Medical Malpractice Claim?

Lavern's Law changed the statute of limitations, so it activated at one of these events:

• The moment the patient knew or should have reasonably known, they faced a misdiagnosis or negligent act; or
• The last treatment date of continuous treatment (continuous treatment doctrine) for the illness, injury, or condition (or date of the last treatment) that created the cause of action.

This law modified the statute of limitations, so it started on the patient's date of discovery rather than the date of the misdiagnosis. New York was only one of six states that did not have this rule, but Lavern's Law changed that status.

Patients gained leeway to discover misdiagnoses and receive legal advice regarding damages. In Wilkinson's case, her statute of limitations would start in 2012 when she found the missed cancer diagnosis in that emergency room visit, rather than in 2010 when the misdiagnosis occurred. As a result, she may have received compensation for damages that could ensure the long-term care of her daughter and other loved ones. While it is too late for Wilkinson, it now gives victims of medical malpractice substantial relief.

The law expanded the time period for new cases but also applied to past ones. Those whose statute of limitations expired in the last ten months before the law passed now had six months to file notices of claims to hospitals and proceed with malpractice lawsuits. The law made things right for the future, but also for those who recently faced medical malpractice errors.

However, it took substantial legislative maneuvering to ensure New Yorkers received this relief. The activity in Albany revealed that there is still a long way to go to secure patients' rights when they face doctor negligence, be it a missed diagnosis or an erroneous one.

How Can Lavern’s Law Affect Your Medical Malpractice Claim?

Lavern’s Law changed the statute of limitations, so it activated at one of these events:

• The moment the patient knew or should have reasonably known, they faced a misdiagnosis or negligent act; or
• The last treatment date of continuous treatment for the illness, injury, or condition (or date of the last treatment) that created the cause of action.
• This law modified the statute of limitations, so it started on the patient’s date of discovery rather than the date of the misdiagnosis. New York was only one of six states that did not have this rule, but Lavern’s Law changed that status.

Patients gained leeway to discover misdiagnosis and receive legal advice regarding damages. In Wilkinson’s case, her statute of limitations would start in 2012 when she found the mistake in that emergency room visit, rather than in 2010 when the misdiagnosis occurred. As a result, she may have received compensation for damages that could ensure the long-term care of her daughter and other loved ones. While it is too late for Wilkinson, it now gives victims of medical malpractice substantial relief.

The law expanded the time period for new cases but also applied to past ones. Those whose statute of limitations expired in the last ten months before the law passed now had six months to file notices of claims to hospitals and proceed with malpractice lawsuits. The law made things right for the future, but also for those who recently faced medical malpractice errors.

However, it took substantial legislative maneuvering to ensure New Yorkers received this relief. The activity in Albany revealed that there is still a long way to go to secure patients’ rights when they face doctor negligence.

Legislature Resistance

But the law has its limits. The state of New York did not have a discovery rule, and the vast medical community resisted efforts to make malpractice claims easier. New York law at the time was more than adequate for them. So, the New York State Senate insisted on a compromise that appealed to the medical and defense communities.

Initially, lawmakers wished Lavern's Law to cover all medical malpractice cases. But legislative compromise in the senate bill limited this date of discovery change to cancer. Also, there is still a date of misdiagnosis limit. Patients can only file claims if no more than seven years passed between the misdiagnosis and its discovery. This compromise arose because the law allows hospitals to destroy records after six years. (Now, the recommended best practice for medical professionals is to keep records for ten years.)

These events show that medical malpractice claims often meet with hostility and resistance. While Lavern's Law is a good start, you cannot expect less of a fight in medical malpractice actions. If anything, doctors and their malpractice insurers are likely to fight these claims harder, so you are less likely to collect. That is why it is crucial to hire a personal injury attorney with malpractice experience who understands the statute of limitations accrual in these actions.

Are You the Victim of Cancer Misdiagnosis?

Lavern's Law offers expanded protection for victims of medical malpractice and cancer misdiagnosis in New York. Patients now have enough time to pursue legal action against negligent healthcare providers and seek compensation.

If you experienced a cancer misdiagnosis in New York State, the experienced medical malpractice attorneys at the Jacob Fuchsberg Law Firm are here for you in New York City. We will assess your case and explain how Lavern's Law affects it. We promise to fight aggressively to hold medical professionals accountable and secure fair compensation for your medical expenses, pain and suffering, and future support for your loved ones.

To receive legal advice about Lavern's Law or a misdiagnosis claim, call (212) 869-3500 or complete the free case evaluation form today. We can help when the unimaginable happens.