Failed Legislation: Proposed Amendment To Change The Statute Of Limitations For Medical Malpractice

After Lavern Wilkinson was unable to sue for medical malpractice because the statute of limitations had run before she even discovered that the malpractice occurred, a new amendment was proposed that would have changed the statute of limitations so that this would not happen in the future.  However, this amendment failed to come to a vote in both the Assembly and the Senate in the 2013 session.

Lavern’s Law, which was named for Wilkinson, died in committee in June 2013.  While the bill had more traction in the Assembly, having reached the floor for a vote, the bill’s sponsor put the bill on hold once she realized that it did not have a chance in the Senate.

Wilkinson has not been the only person harmed by the state’s statute of limitations.  In another case, Marilyn Veritzan had an emergency CT scan after being involved in a 2009 car accident.  Doctors reviewed the scan and detected a shadow on her lung.  They failed to perform the correct follow-up, informing her that everything was fine.  It was not until a year and a half later, once she was diagnosed as having Stage 4 incurable lung cancer, that a family member recalled that she had had the CT scan.  Unfortunately by then it was too late to sue since the 15 months statute of limitations to sue a municipal facility had already run.

New York is one of only six states where the statute of limitations begins to run at the moment the harm occurs, even when the negligence isn’t discovered until years later. Had Lavern’s Law passed, New York would have adopted a “date of discovery rule” where the statute of limitations would have begun to run when the victim either discovered or could have reasonably known about the harm.

Since Lavern’s Law did not pass, this means that victims of medical malpractice continue to have:

• Just 2 1/2 years from the date the harm actually occurred to sue if the medical malpractice occurred in a private facility, or
• Only 15 months to sue if the harm occurred while the victim was a patient in a municipal facility.

The supporters of Lavern’s Law believe that the current system victimizes patients a second time.  Not only have they been injured by the initial medical malpractice, but they have also been denied their right to justice.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.