What is the Deadline to Sue for a Delay in Diagnosis of Cancer?

Cancer, Cancer Misdiagnosis

A delayed cancer diagnosis can happen because the patient does not realize that the doctor misdiagnosed cancer or did not notify the patient of a possible cancer diagnosis. A law (CPLR section 214-a), effective January 31, 2018, extended the deadline to sue for the negligent failure to diagnose cancer. The “discovery” law only applies to cancer cases.

CPLR section 214-a states:

“[W]here the action is based upon the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within two years and six months of the later or either: (i) when the person knows or reasonably should have known of such alleged negligent act or omission and knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than seven years from such alleged negligent act or omission.”

The law applies to acts, omissions or failures occurring on or after January 31, 2018 as well as to acts, omissions or failure occurring on or after July 31, 2015. Mula v. Sasson, 181 A.D.3d 686 (2nd Dep’t 2020).

For example, assume that a patient undergoes mammograms in December, 2017 and December, 2018 and is diagnosed with breast cancer in August 2019. The patient has two years and six months to commence a lawsuit from the date of diagnosis in August, 2019 and in this scenario, the statute of limitations expires in February, 2022.

Before the enactment of the discovery rule set forth in CPLR section 214-a, the statute of limitations would have begun on the date of the negligent act. The former law would have barred the claims that was based upon treatment that occurred more than 2 ½ years before the lawsuit was filed.

The statute of limitations now begins from the time when a cancer patient becomes aware of a misdiagnosis, rather than from when the error was made. The date of treatment or the occurrence, is no longer the relevant date for purposes of determining the statute of limitations.