By Thomas A. Mobilia and Aryeh Klonsky
On June 21, 2017, the New York State Legislature passed a law that would significantly extend the time for patients to initiate a medical malpractice lawsuit against healthcare providers in cases involving an alleged failure to diagnose a malignant tumor or cancer. The bill (Senate 6800/Assembly 8516), known as Lavern’s Law, has been working its way through the state Legislature ever since the bill’s namesake, Lavern Wilkinson, was time-barred from bringing a lawsuit following a lung cancer diagnosis.
Wilkinson was a 38-year-old woman who presented to a New York City hospital emergency room with chest pains. A radiologist noted a suspicious mass on the X-ray, but she was sent home without being advised of the mass. Several years later, Wilkinson was diagnosed with lung cancer and sought to bring a suit against the hospital, claiming that the fatal cancer was diagnosable and treatable during the ER visit in 2010. By the time of diagnosis, however, Ms. Wilkinson was time-barred from bringing the suit, and subsequently died from lung cancer in 2013.
In general, plaintiffs have up to 2 1/2 years from the date of the alleged negligent act, omission or failure complained of, to commence a medical, dental or podiatric malpractice action. In certain cases, plaintiffs already have the benefit of various extensions or “tolls” to the deadline, thereby permitting lawsuits beyond the 2 1/2 year statute of limitations. Under New York’s “continuous treatment doctrine,” for example, the 2 1/2 year statute of limitations is tolled until the last date of treatment, provided that there has been continuous treatment for the same illness, injury or condition that gave rise to the claimed malpractice.
Citing to Wilkinson’s case as an injustice, patient advocates, plaintiffs’ attorneys and lobbyists pressed New York lawmakers to adopt a “discovery rule” to extend New York’s statute of limitations. Specifically, the current 2 1/2 years from the date of occurrence would be changed to 2 1/2 years from the date the patient discovered the occurrence. A retroactive date was also proposed which allowed a one-year window to revive cases that were time-barred under current law.
Ultimately, a modified version of the bill cleared both the New York State Assembly and Senate in June 2017, which extended the statute of limitations for medical, dental or malpractice actions involving a claimed failure to diagnose a malignant tumor or cancer. The bill provides that such cases must be commenced within 2 1/2 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.” The bill also provides, however, that no such action can be brought seven years after the date of the alleged malpractice or the last treatment if there is continuous treatment. Lastly, the one-year window to resurrect time-barred cases was excluded from the bill.
A plaintiff must still prove that a physician’s alleged failure to diagnose cancer was a departure from good and accepted medical practice and that such departure was a proximate cause of the plaintiff’s injuries. The bill will also give rise to defense counsel moving for dismissal of the case, wherein the litigated issue will be the timing by which the patient should have reasonably known about the alleged misdiagnosis.
The bill currently awaits Governor Andrew M. Cuomo’s signature. He has, however, publicly expressed his support.
While the total impact on healthcare providers and hospitals remains to be seen, the bill has the potential to substantially increase the number of cancer-related malpractice actions and raise insurance premiums.
Lawsuits will also 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, the physician is 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.