New York’s Discovery Rule: Like Lavern’s Law, But A Little Different–Learn It Here!

The discovery rule was created from common law, and later codified, to address the issue of cases of where foreign objects have been left inside a patient. This rule creates an alternative statute of limitations period which begins running after the object has been discovered. New York law states that victims of medical malpractice that involve foreign objects left in the patient’s body has a year from the date the object could have been reasonably discovered based on the wrong itself or the facts, whichever is earlier, to commence the action. Victims also have two and a half years under the Civil Practice Law and Rules, or the year from the discovery rule, whichever time period was longer.

What is considered a foreign object is very important in cases involving the discovering. The object must have been inadvertently left inside the patient. Such objects include pads, gauze, surgical clips, scalpels, or other tools. The discovery rule does not apply if the object has been intentionally left inside the patient and has not been removed because it was forgotten. These objects can include implanted or fixation devises.

Unfortunately, most cases involving foreign objects are instances where the patient’s body rejected an item that has been intentionally placed. Dangerous abscesses or the object may start a massive, deadly infection.

Lavern’s Law could expand the discovery rule to cancer patients, starting the statute of limitations from the date an error has been discovered by the patient rather than when the mistake occurred, as is current law. This new law would allow a cancer patient who has been misdiagnosed 2 ½ years from the date the negligence was discovered to bring a lawsuit. However, if the negligence occurred more than seven years earlier, then the patient would be barred from bringing a lawsuit.