Appellate Update: Governor Cuomo Signs Lavern’s Law Tolling the Statute Of Limitations For Malpractice Actions Alleging A Failure To Timely Diagnose Cancer
On January 31, 2018, Governor Andrew Cuomo signed into law the bill which has become known as “Lavern’s Law.” The signed version of this law, which has been modified from the bill that cleared the Legislature on June 21, 2017, extends the statute of limitations for medical or dental malpractice actions involving a claimed failure to diagnose a tumor. Now such cases must be commenced within 2 ½ years from when a patient knows or reasonably should have known of the alleged failure to diagnose a malignant tumor or cancer, whether by act or omission, or reasonably should have known that such negligent act or omission caused the injury. This new law also provides, however, that no such action can be brought more than 7 years after the date of the alleged malpractice. Lastly, this law provides that people whose statutes of limitations expired within the last 10 months will get a 6-month window to commence their action.
In light of this change in the law, lawsuits will be started further away from the actual care and treatment rendered, when memories have faded and witnesses and records are more difficult to locate. Accordingly, physicians are well advised to carefully and thoroughly document all encounters with patients, including discussions regarding the findings, differential diagnoses, treatment options, and associated risks, benefits, and alternatives, and follow-up recommendations. Moreover, proper record retention policies and procedures are now even more crucial than they already were, given the extended lag between treatment and suit that this new statute contemplates.
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.