• NYS Senate Passes Bill Enhancing Cancer Patient Right to Sue
  • July 25, 2017 | Author: Joseph J. Manna
  • Law Firm: Lipsitz Green Scime Cambria LLP - Buffalo Office
  • On June 21, 2017, the New York State Legislature passed a bill that will help ensure misdiagnosed cancer patients have an opportunity for their day in court.

    Under existing law, a medical malpractice patient must file a lawsuit against a physician who has committed malpractice within two and a half years of the “negligent act” or the patient’s claim will be forever barred from legal recourse. The current law significantly limits a patient’s ability to hold a physician accountable for malpractice because a misdiagnosis can occur without the patient being aware of the error for several years.

    For example, a radiologist may read an imaging study as negative for cancer, but three years later, the patient has a fatal cancer that has been left untreated as a result of the radiologist’s negligence in reading the study three years earlier. Under this scenario, the patient’s medical malpractice claim would be barred because it was not commenced within two and half years of the malpractice occurring.

    Lavern's Law

    Under the new bill, called Lavern’s Law, the window to bring a medical malpractice case involving cancer or malignant tumors begins when the patient discovers the physician’s negligence, not when the negligence occurs. If the Governor signs this new bill into law, the patient in the above example would be able to bring his or her claim.

    The bill’s namesake is Lavern Wilkinson. Ms. Wilkinson died in 2013 at the age of 41 from a form of lung cancer that could have been cured if her doctors did not initially misdiagnose her cancer. Lavern Wilkinson was not allowed to sue the doctors who misdiagnosed her curable lung cancer because the misdiagnosis was discovered after the time period current law permits victims of malpractice to bring suit. At the time of her death, Ms. Wilkinson had a 15-year old developmentally disabled child with autism who required round-the clock care.

    "A step in the right direction"

    “This is a step in the right direction,” according to Joseph Manna, a senior partner at the law firm of Lipsitz Green Scime Cambria LLP. “Every year, we are asked to review many cases involving clear cut cases of misdiagnosed cancer, but nothing can be done because the negligence happened more than two and a half years before the patient even knew they had cancer.”

    In a recent Buffalo Law Journal article, Mr. Manna wrote about a man who contacted him recently. This man received medical care at his local hospital and, four years later, found that the physicians has missed the signs of his colon cancer. Because of the time limit the current law mandates, Mr. Manna was not able to pursue his case and the man died three months later.

    “If this new bill is signed by the Governor, it’s some good news for people who could use it,” Mr. Manna said. “They are too often turned away by the legal system even though they need its help and they were clearly injured by physician negligence,” he continued.

    Mr. Manna explained, “The only problem I see with the bill is that it does not cover all malpractice victims. It only covers cancer related malpractice because of compromises that had to be made with opponents of the bill, led by the insurance lobby.”