New York victims of medical negligence suffered a catastrophic blow this past Thursday, as state legislators refused to pass a “Date of Discovery” bill that has already been approved by 44 other states. “Lavern’s Law,” named after one particularly tragic medical negligence victim, would have corrected an oversight in the law as it applies to victims of medical negligence and misdiagnosis treated at New York hospitals.
Lavern Wilkinson was a 41-year-old single mom living in Brooklyn, struggling to care for her severely autistic daughter Micalia, when she learned that she was dying of stage 4 lung cancer. Lavern’s cancer actually showed up on an x-ray 3 years earlier when she visited Kings County Hospital for respiratory problems, but it was missed by her doctor.
Had her doctor noticed it then, Lavern would have been treated and her chances at recovery would have increased substantially. However, by the time her cancer was discovered by another doctor reviewing the same x-ray 3 years later, it was too late. The cancer had metastasized throughout her body.
Presently in New York, victims of medical negligence at municipal hospitals only have 15 months from the date of the malpractice to file a lawsuit. Because Lavern did not learn that her doctor had misread her x-ray until nearly 3 years later, she was never able to bring the doctor, or Kings County Hospital to court.
“If someone was to give me a choice between having money or having my life back and my health back, I would choose my health and having my life back for the sake of this beautiful little girl,” said Lavern of her daughter Micalia, who will require around-the-clock care for the rest of her life.
Tragically, Lavern was given neither.
44 states have correctly set the time to sue for medical malpractice lawsuits based on the date of the discovery of malpractice. New York‘s current laws are based instead on the date the negligence occurred, and only give victims 15 months to act. This system does not take into account when the victim becomes aware of the malpractice.
New York’s medical malpractice laws become most dangerous when an x-ray, CT scan or MRI film is read incorrectly, much like what happened in Lavern’s case. Because hospitals can not be held liable for negligence 15 months after it occurs, these laws actually create an incentive for negligent physicians to remain silent until this time has passed.
Though Lavern’s Law was passed by the State Assembly and publicly backed by Governor Cuomo, it could not get past the Senate. Republican Senate Majority Leader John Flanagan has said in the wake of Thursday’s voting that the Senate will readdress the bill in the coming months. This is a vital piece of legislation for New Yorkers that could make an enormous change in the lives of medical malpractice victims, so let’s hope Senator Flanagan is telling the truth.
Sources: Evans, Heidi and Kenneth Lovett, “Lavern’s Law dies as state Legislature is set to finish session,” NY Daily News, 25 June 2015.
Evans, Heidi, “Lavern Wilkinson, victim of medical malpractice, dies of the cancer that could have been treated,” NY Daily News, 7 March 2013.