Lavern Wilkinson was murdered. Not necessarily by doctors. But by the inequities in our legal system. All causes of action have what are known as statute of limitations periods. These are time limits on commencing a claim. A claim must be filed within the time limit or it is forever barred. There are very few exceptions to this rule.
A medical malpractice claim as a two and a half year (2 1/2) year statute of limitations period or time limit. This is measured from the date of the negligent act or omission. There are very few exceptions to this rule, including when a patient continues to treat with the negligent healthcare provider or when a foreign is left in a patient and is not discovered until later. Some other tolls, or pauses in the time limit, are infancy or incompetency. Best practices are to not rely on these extensions or tolls.
But there is not toll or time limit when cancer is misdiagnosed. It is not a foreign object left by a doctor, so the discovery rule doesn’t apply. Very few patients will also continue to treat with the regularly or vigor needed to trigger the continuous treatment doctrine; this requests systematic and chained visits—not even yearly annuals or quarter checks; it must be continuous and related in a series.
When doctors missed Lavern Wilkinson’s mass in her breast, she was condemned when the cancer was allowed to grow and become irreparable. By the time the symptoms triggered her to seek further treatment, and by the time another physician discovered the cancer and the mistake, it was more than two and a half years (2 1/2) years after the negligent act or omission.
In the United States, 44 states would allow her to recover compensation—New York is not one of them. Thus, she couldn’t win her lawsuit because of this time limit.
She ended up passing away because of the medical malpractice leaving a young daughter—as a single mother.
But she had no legal options or rights to compensation.
For years, politicians have lobbied for a discovery rule to help victims like her. And finally this year the Senate and then the Assembly passed Lavern’s Law.
This is a very important law for medical malpractice victims!
The New York Legislature passed Lavern’s Law to extend the time to file a medical malpractice lawsuit until when the patient discovers or should have discovered cancers or other malignant tumors misdiagnoses.
This means the two and a half years starts when the misdiagnosis is discovered and not when the medical malpractice occurred. However, in any event such medical malpractice lawsuit cannot be more than seven years after the medical malpractice.
Now it just needs to be signed by Governor Andrew Cuomo to become the law. Originally, Governor Cuomo had expressed strong support for the bill and spurred the Legislature to get it passed. But now he has been eerily quiet as to what he will do and it has been sitting on his desk for weeks now.
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 [email protected] 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.