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Lavern’s Law May Shake Up New York Malpractice Law


Victims of medical malpractice must focus their attention on recovering from the harm caused to them by the negligent actions of medical professionals who failed in their duty to heal. Unfortunately, dealing with the pain and further medical treatment resulting from malpractice, along with the time it takes to realize malpractice has occurred, sometimes results in victims missing their window of opportunity to file suit to seek recompense.

A new piece of legislation—Lavern’s Law—addresses this situation, to some degree, in New York, giving men and women whose doctors failed to make a cancer diagnosis more time to find a New York personal injury lawyer to seek justice on their behalf.

Statute of Limitations for New York Malpractice

Understanding what medical malpractice is will help you determine whether you have a case. According to the National Center for Biotechnology Information, the definition of medical malpractice is “any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.”

Each state sets its own statutes of limitations for cases—laws that specify how long plaintiffs have a right to file a lawsuit in civil courts after they’ve suffered an injury or loss. In general, New York law says that victims of medical malpractice have two-and-a-half years after a mistake by a medical professional occurs to file a medical malpractice suit.

One of the huge problems with this law is that medical malpractice often is not readily apparent until months or even years after an error occurs. By the time many patients discover that malpractice may have occurred and find a personal injury lawyer in New York to take their case, their window of opportunity to file suit has closed.

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A new law passed by the New York Legislature in 2017 addresses that problem, at least for some victims. The New York Legislature passed Lavern’s Law in June 2017. Again, the law extends the statute of limitations, but only for cancer patients, giving them two-and-a-half years after the discovery of malpractice to file suit. The law was initially intended to cover all malpractice suits, but New York lawmakers could not be convinced to extend that umbrella beyond cancer patients. At this writing, Lavern’s law still awaits the signature of New York Gov. Andrew Cuomo.

Lavern’s Law is named for Lavern Wilkinson, a Brooklyn resident who died in 2013 of lung cancer after doctors at Kings County Hospital misdiagnosed her. Wilkinson went to the hospital’s emergency room in 2010, and doctors ordered an x-ray and EKG. A radiologist found a suspicious two-centimeter mass in Wilkinson’s right lung, but she never received the test results. She was told to go home and take Motrin by a first-year resident.

Had doctors acted properly then, Wilkinson would have had an excellent chance of beating her cancer. Wilkinson returned to the hospital again in 2012, where tests found that her cancer had spread to her liver, brain, lungs, and spine and was terminal. Her attending physician at the time informed her of the botched diagnosis in 2010.

Wilkinson’s window of opportunity to save herself had closed, as had her opportunity to sue for malpractice. She fought her cancer for 10 months—longer than the six months she was given to live—and died in 2013. Wilkinson left behind a 15-year-old child with special needs.

Lavern’s Law was a contentious issue for the New York Legislature, and the powerful medical lobby came out full-force against it. The bill failed passage in 2015 and was narrowly approved in 2017. The signing of Lavern’s law by Governor Cuomo would correct a great injustice done to the victims of medical malpractice, giving them time to realize physicians’ mistakes and seek recompense in court.

What to Do if You’ve Been the Victim of Malpractice

Remember, even if Gov. Cuomo signs it, Lavern’s law will apply only to cancer misdiagnoses. Malpractice for other ailments will still have to comply with the current statute of limitations, which is timed from the date of the event, not its discovery. The sooner you get the ball rolling on your malpractice case with a qualified New York personal injury lawyer, the better.

medical error

If you think you’ve been the victim of malpractice, take the following actions:

  • Gather documentation – Collect all the lab results, tests, communications with your doctor, prescriptions, and other records of the care you received. This is important information you can provide your attorney. The more information you can provide, the better the foundation of your case.
  • Question your care providers – Ask questions about the treatment you’ve undergone, the tests conducted, and your symptoms. Document what your caregivers tell you; it can be important evidence later.
  • Ask your care provider to investigate – Ask your doctor or hospital to conduct an internal investigation into the matter. Your attorney may be able to obtain the results and use the findings to bolster your case.
  • Get in touch with an attorney, ASAP – Remember, the clock is ticking on your ability to pursue a claim. Get your lawsuit filed as soon as you can to avoid missing out on the opportunity to get recompense for your injury.

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The good news is that New York has no limit on damages that courts can award to a successful malpractice plaintiff. However, if you are found to be partially at fault for your injuries, the court can reduce your damages. For example, if a jury awards you $200,000 in damages, but you’re found to be 40 percent at fault in the accident, you would only get $120,000 at settlement or judgment.

One important thing your attorney must do in a medical malpractice lawsuit is to file a written certificate of merit within 90 days of filing the lawsuit. The certificate must state that the attorney has reviewed the case and consulted with a physician and found that grounds for malpractice exist or that the attorney had been able to meet with a physician, despite making three “good faith” attempts at consultation.

Most Common Causes of Medical Malpractice Suits
Rank Cause
10 Unnecessary surgery
9 Retained surgical items
8 Inadequate follow-up by physicians
7 Lack of informed consent to treatment
6 Not following safety procedures
5 Errors in administering medication
4 Not properly documenting patient instruction
3 Failure to treat illness or injury
2 Patient suffering abnormal injury due to negligence
1 Failure to diagnose

Most Common Causes of Medical Malpractice

Working with The Dearie Law Firm

For victims of medical practice seeking compensation in the Empire State, working with an experienced personal injury attorney in New York is a must. The Dearie Law Firm has recovered millions for plaintiffs who have been injured by the negligent acts of medical professionals. Some recent victories by the firm include:

  • Recovering $1.25 million for a client whose doctor failed to diagnose a spinal cord compression on an MRI.
  • Recovering $675,000 for a Manhattan woman infected with Hepatitis C from an unsanitary dialysis machine.
  • Recovering $1 million for the parents of a child infected by Aspergillus while staying in a city hospital.

Working with The Dearie Law Firm

The Dearie Law Firm has practiced in New York for more than 30 years, helping clients just like you recover compensation and damages when they’ve been harmed by the actions of another.

The firm does more than just show up for court dates and file paperwork; attorneys with The Dearie Law Firm counsel clients through all the steps of their lawsuit, helping to ease the frustration and anxiety victims often feel when they must work their way through the complexities of the court system.

If you’ve been the victim of medical malpractice, you need a personal injury lawyer in New York City who knows the system and its players; contact The Dearie Law Firm to get the aggressive, competent representation you need to get the settlement or judgment you deserve.