“Lavern’s Law” Faces Hurdles in NY Senate Again

  • Posted on: Jul 19 2017
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What You Need To Know About Medical Malpractice Statute of Limitations Rules

The first and most important question you must ask about any case you want to bring to court is simple: “What is the statute of limitations?”  A statute of limitations is simply a law that puts a time limit on how long you can bring a case to court.  If you don’t make it to court before time runs out, the court will not hear your case!  It doesn’t matter if your case is a small claims case about your landlord shortchanging you by $300 on your deposit or a wrongful death claim for $30 million…if you take too long to get to court, the judge will tell you that your claim is “barred by the statute of limitations,” and will dismiss your case.

When does the clock start?

With so much riding on the time limits for filing cases in court, the most obvious question is when the clock starts ticking.  Some cases are easy to figure out, like a car accident.  If a driver runs a red light and hits you on July 21, and there is a two-year statute of limitations on injuries from car accidents, then the clock should start running on July 21 because that’s when the injuries happened, and everybody involved knew about it on that date.  But some cases aren’t so simple—for example, what about cases where the injured party doesn’t know he or she is injured until much later? This is a common issue with medical malpractice cases.

Who Was Lavern, And Why Does She Need A Law?

Lavern Wilkinson was a 41-year-old mother of a child with autism and developmental delays who was living in Brooklyn until 2013, when she died of a curable form of lung cancer.  In 2010, Lavern had gone to the hospital complaining of chest pain.  The doctors there took x-rays, and the results showed that Lavern had a small tumor growing on her lung.  But a first-year doctor in residence made a mistake, ignored the tumor, and told Lavern to go home and take an over-the-counter pain killer.  By the time Laverne returned to the hospital in 2012, her cancer had spread to her liver, brain, and spine, and it had become terminal.  Laverne died on March 7, 2013, leaving behind her 15-year-old son who requires care around the clock.

When Lavern’s family tried to bring a lawsuit to hold the doctors and the hospital responsible for their mistake, they were denied access to the court.  Under New York law, the statute of limitations for medical malpractice claims is two and a half years long, and begins when the injury occurs, NOT when the injured party discovers his or her injury.  So in Lavern’s case, the timeline started running in 2010 when the hospital failed to inform her of the tumor growing on her lung.  From that date, she and her family had two and a half years to bring any medical malpractice claims to court—so after Lavern died in 2013 and her family tried to sue, they were told it was too late.

What Would Lavern’s Law Do?

Lavern’s Law was designed to make one very simple change to the statute of limitations for medical malpractice claims in New York.  Instead of starting the clock when the injury occurs, Lavern’s Law makes the timeline start when the injured person knows (or should have known) that they’ve been injured.  In Lavern’s case, that means the clock wouldn’t have started until she went back to the hospital in 2012, instead of her first visit in 2010.  That extra two years would have made the difference between her family being able to seek justice in the courts and being denied access to justice, which is why 40 different New York senators have signed on to sponsor the bill.

What Is Happening with Lavern’s Law Now?

“Lavern’s Law” is not actually a law yet; it is a bill moving through the New York legislature for the third time.  It has been defeated twice already, and although it recently passed the Senate, in order to get enough votes to pass the bill had to be changed.  Instead of applying to any medical malpractice case, Lavern’s Law will now apply only to cases of cancer and malignant tumors.  You can read more about the challenges to Lavern’s Law in this Daily News article.

For now, most medical malpractice cases in New York continue to be governed by timelines that begin when the injury actually occurs, whether you know about it or not.  That makes it imperative that if you have trouble with a medical procedure, you consult a qualified attorney as soon as possible.  Our experienced staff of attorneys is available to represent you, so call us to set up a free consult today.

Posted in: Medical Malpractice