Governor Andrew M. Cuomo, Senate Majority Leader John J. Flanagan and Speaker Carl Heastie today announced that a three-way agreement has been reached on Lavern's Law: legislation that would extend the amount of time a person can file a suit for a missed cancer diagnosis.
The legislation is named after Lavern Wilkinson, who died in 2013 after a missed cancer diagnosis. The bill amends the statute of limitations to sue for a missed cancer diagnosis to two-and-a-half years after the time that the patient learns of the error. Current law limits suits for cases like Ms. Wilkinson's to 15 months after when the misdiagnosis was made.
"No one should have to go through what Lavern Wilkinson and her family did, and this agreement will help protect cancer patients and their loved ones, while also addressing concerns from the medical field," Governor Cuomo said. "With this reform, we will help make New York a healthier, fairer state for all."
Senate Majority Leader John J. Flanagan said, "This agreement ensures that we deliver a responsible new law that better protects patients and their families when a misdiagnosis occurs that prevents an individual from beginning a timely treatment to fight and beat cancer. I thank the Governor and our partners in the Assembly for helping us get to the finish line on this important new measure."
New York State Assembly Speaker Carl Heastie said, "I am proud that we were able to come to an agreement to help give victims of medical malpractice the justice they deserve. Lavern Wilkinson's memory will live on and now victims of these kinds of misdiagnoses will have access to our courts. I want to thank the members of our Assembly Majority, especially Assemblywoman Helene Weinstein who sponsored this bill and was a strong advocate, for their focus and determination in helping cancer patients seek justice."
Under current state law, the statute of limitations applicable to medical malpractice actions can expire in some cases before some patients know they have been injured. The bill (S.6800) cures that problem for cases involving failures to diagnose cancer and malignant tumors. Under this agreement, the two and a half year statute of limitations would run from the date that the plaintiff knew or should have known of the negligence and injury, instead of the date when the negligence occurred, with an outer limit of seven years from the date of occurrence.
Assemblywoman Helene Weinstein said, "We have heard far too many heartbreaking stories about cancer patients like Lavern Wilkinson who have been misdiagnosed only to be shut out of our legal system because of an overly restrictive law. Learning that one has cancer is difficult enough, and I am thankful that we are strengthening our laws so that victims of medical malpractice will be able to have their day in court."
Kenneth E. Raske, President of the Greater New York Hospital Association, said, "I would like to thank the Governor for his hard work and his serious attempt to find balance and equity for all parties. While this is a challenging issue given the medical liability environment in New York, the health care community is dedicated to fairness for all consumers. I applaud the Governor for striking a balance that will truly help New Yorkers."
Matt Funk, President, New York State Trial Lawyers Association, said, "Families of cancer patients already endure too much loss and heartbreak, and without accountability, the current law imposes additional burdens upon them. This legislation will help bring justice to cancer victims and restore hope to their loved ones. We applaud Governor Cuomo, Majority Leader Flanagan and Speaker Heastie for this agreement to help protect New Yorkers."