New York Legislation Re: Oncology Statute Of Limitations

The New York Legislature has passed a bill that extends the statute of limitations for cancer patients. “Lavern’s Law” would give cancer patients 2 ½ years from the time they became aware of a misdiagnosis rather than from the time of the alleged malpractice.

Lavern Wilkinson died in 2013 of a curable form of lung cancer after doctors at Kings County Hospital Center, Brooklyn, misdiagnosed her condition. By the time she filed a lawsuit, the statute of limitations had expired. Wilkinson went to the hospital in 2010 with chest pain and was told that her X-ray looked fine. In 2012 she had breathing troubles which was diagnosed as asthma. When the old X-ray was reexamined, a small cancerous mass was seen which in 2012 had developed into lung cancer and spread to other parts of her body. She died in 2013 at the age of 41.

Lavern’s Law would set the statute of limitations clock for cancer patients alleging malpractice to start at the moment of discovery.  This is the standard in all but six states. New York Assembly bill A08516 states:

The courts in this State have consistently interpreted the accrual of a cause of action for negligence as occurring at the time the act complained of occurred. In medical malpractice cases, arising out of a misdiagnosis or the failure to diagnose, the injury suffered by the victim of such a tort is often discovered until the well after the statute of limitation has expired. …

The current statute of limitations is based upon an archaic rule that a cause of action sounding in negligence accrues at the time of the negligent act. The better rule and the one most widely adopted in other jurisdictions, such as New Jersey, North Carolina, and claims against the United States of America arising under the Federal Tort Claims Act,is one which recognizes that some injuries do not manifest themselves at the time of the negligent act, and which permits a victim of medical malpractice to discover his or her injury before their statutory period to begin suit runs out.

Allegations of missed or delayed diagnosis of cancer may result in malpractice litigation. Oncology cases are complex. Patients may suffer  medical complications or death.  The board certified oncology expert witness provides an invaluable resource in evaluating these complex cases. Contact ELITE Medical Experts to speak directly with a physician or nurse who will hand select the expert witness with the required expertise for your case.

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