Appellate Update: Revival Under Lavern’s Law Of Previously Dismissed Claims Is Not Appropriate Absent Strict Compliance With 2017 NY Senate Bill 7588 §4
By Barbara DeCrow Goldberg and Gregory Cascino
On January 31, 2018, after months of negotiations with the Legislature and various interest groups, Governor Cuomo signed “Lavern’s Law” into effect. As enacted, this law creates a new CPLR §214-a(b) and §203(g), both of which provide that an action based upon an allegedly negligent failure to diagnose cancer or a malignant tumor may be commenced within 2 1/2 years of the later of either: (1) when the person knows or reasonably should have known of such alleged negligent act or omission and knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than 7 years from such alleged negligent act or omission; or (2) the date of the last treatment when there is continuous treatment for such injury, illness or condition.
Prospective application of Lavern’s Law is straightforward; plaintiffs have 2 1/2 years from when they know or reasonably should have known of the allegedly negligent failure to diagnose the malignant tumor, subject to an outside limit of 7 years from the date of the alleged malpractice.
Although it was widely reported that Lavern’s Law has a retroactive effect, this is not actually contained in the text of CPLR § 214-a (b) or §203(g). Rather, the Legislative History of Lavern’s Law contains a provision which can revive previously dismissed actions if specific criteria are met. In this regard, 2017 New York Senate Bill 7588 §4 (“SB 7588 §4”) provides:
with regard to any action or claim arising from alleged medical malpractice based upon an alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, which, within ten months prior to the effective date of the act that created this section, became time-barred under any applicable limitations period then in effect, such action or claim maybe commenced within six months of the effective date of the act that created this section, and not beyond….
Thus, by its express terms, SB 7588 §4 only revives actions which “became time-barred under any applicable limitations period then in effect” within 10 months prior to the January 31, 2018 effective date of Lavern’s Law; i.e. on or after March 31, 2017. Notably, these revived actions must be filed by July 31, 2018. Moreover, SB 7588 §6 provides that Lavern’s Law shall “apply to acts, omissions, or failures occurring within 2 years and 6 months prior to the effective date of this act, and not before.”
Notwithstanding the limited reach of this revival language, plaintiffs have attempted to revive claims which became time barred before March 31, 2017, arguing for a more expansive reading of SB 7588 §4. For example, shortly after the enactment of Lavern’s Law this firm was served with a complaint alleging that its client misinterpreted a patient’s April 2013 MRI as negative for cancer. Plaintiff had previously commenced an action in 2016 raising these same claims, but thereafter acknowledged the claims were time barred and agreed to discontinue them with prejudice.
In re-commencing the previously time-barred action, plaintiff took the position that the statute of limitations did not begin to run until the alleged malpractice was “discovered” in July 2015, when a subsequent MRI was interpreted as highly suspicious for cancer, and that therefore her claim did not become time barred until 2 1/2 years later in January 2018. Since this was within 10 months of the effective date of Lavern’s Law, Plaintiff argued that her complaint was revived by SB 7588 §4.
This firm filed a pre-answer motion to dismiss, pointing out that plaintiff’s action did not become “time-barred under any applicable limitations period then in effect” within 10 months of the effective date of Lavern’s Law (on or after March 31, 2017), since CPLR §214-a and §203 did not have a discovery toll for claims alleging a failure to diagnose cancer pre-Lavern’s Law. Thus, under the law “then in effect,” plaintiff’s cause of action accrued at the time of the alleged malpractice (April 2013), and became time barred 2 1/2 years later in October 2015; significantly more than 10 months prior to the effective date of Lavern’s Law. Indeed, the only way to reach the result urged by plaintiff would be to apply Lavern’s Law’s discovery provision to plaintiff’s pre-Lavern’s Law claims; an interpretation directly at odds with the express language of SB 7588 §4.
This firm also stressed that a prior draft of Lavern’s Law contained much broader revival language which was specifically removed during negotiations and replaced with the narrower language of SB 7588 §4. In this regard 2017 Senate Bill 6800 §3 (“SB 6800 §3”) had provided that any claim alleging a failure to diagnose cancer which was discovered within 2 1/2 years of the effective date of Lavern’s Law will be deemed to have accrued on the effective date of Lavern’s Law; essentially restarting the statute of limitations for these claims. Notably, however, SB 7588 specifically repealed SB 6800 §3 and replaced it with the much narrower revival language discussed above. Since legislative intent can be inferred from the omission of proposed substantive changes in the final legislative enactment, the significant narrowing of the revival language by the Legislature was compelling evidence that the language that was ultimately adopted must be strictly construed.
Soon after being served with our pre-answer motion to dismiss, plaintiff agreed with our position and discontinued the second action.
Thus while it is possible under Lavern’s Law for previously time barred actions to be refiled up until July 31, 2018, this is only permissible in those cases which meet all the requirements of the narrowly written revival provision contained in SB §7588 §4. If these requirements are not met, a pre-answer motion to dismiss is appropriate.
Questions? Contact Barbara Goldberg at (212) 916-0980 or Gregory Cascino at (516) 712-3146
Appellate Update is published by the Appellate Practice Group of Martin Clearwater & Bell LLP to inform clients about significant legal developments. This publication is intended for general information only and should not be used for specific action without obtaining legal advice. If you would like further information about the services of Martin Clearwater & Bell LLP, please contact Barbara D. Goldberg, Head of the Appellate Practice Group, at (212) 916-0989 or goldbb@mcblaw.com or Gregory A. Cascino at (516) 712-3146 or gregory.cascino@mcblaw.com.