New York Extends Time to File Malpractice Claim

By David E. Richman and Ada Kozicz

Governor Andrew Cuomo has signed a new law, known as “Lavern’s Law,” that extends the amount of time a patient has to file a medical malpractice claim for a missed cancer or malignant tumor diagnosis. Patients now have 2 1/2 years to file a claim from the date the misdiagnosis is discovered by the patient, or the date it should have been reasonably discovered by the patient, rather than from the date the misdiagnosis occurred.

Since the time to file a claim does not begin to run until the date of discovery, the new law may significantly increase the number of claims that will be filed. However, the law also includes a cap of seven years, meaning that no patient can file a claim for a missed cancer or malignant tumor diagnosis if more than seven years have passed from the date of the alleged misdiagnosis or the date of the patient’s last treatment of continuous care with the health care provider.

The law was named after Lavern Wilkonson, who died of cancer that could have been curable if properly detected and treated sooner. Three years prior to her death, a radiologist noticed a suspicious mass in Lavern’s lung but did not warn her about it. Under the old law, Lavern’s family could not file a malpractice claim against the radiologist because more than 2 1/2 years passed since the alleged malpractice. Yet, under the new law, this type of claim would not be barred.

With this legislative change, some critics believe that health care costs may increase as health care providers will be incentivized to order extensive, and arguably unnecessary, tests to reduce their liability exposure and adequately confirm that a patient does not have cancer or a malignant tumor.

While on its face, Lavern’s Law significantly increases the period of time within which a patient may bring suit for an alleged missed cancer diagnosis, the relief presumed to be afforded by the Law is not clear-cut. In fact, this will likely result in additional litigation between patients and their physician over the question of when the Statute of Limitations should be triggered for the purpose of determining when a “failure-to-diagnose-cancer-claim” should have been brought.

We anticipate that the controversy will be less about when a definitive diagnosis was made but when the cancer “should have been discovered.” The patient’s attorney will likely argue that the Statute of Limitations should begin to run as of the date of diagnosis. The attorneys for the health care provider will undoubtedly argue that an earlier date – the date on which the cancer should have been diagnosed – should apply. The latter argument requires a far more subtle analysis than simply focusing on the date a definitive diagnosis was made. The argument must look at such factors as the onset of symptoms that ultimately were proven to be the early signs of the cancer that was eventually diagnosed.

New York courts have grappled with this type of analysis for several years in applying a so-called “discovery rule” to toxic tort claims to remedy the perceived unfairness of a statutory period that expired years before the disease was or could have been diagnosed. Decisions resolving this question of when a disease “should have been diagnosed” in the toxic tort area have found the courts to be quite receptive to defense arguments and we anticipate that those precedents will be applied to claims seeking to be brought with the benefit of Lavern’s Law  to the same effect.

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David E. Richman concentrates his practice in the areas of medical malpractice defense, construction-site accidents, New York Labor Law litigation, pharmaceutical product liability, product liability defense and toxic torts.

The head of Rivkin Radler’s Complex Tort & Product Liability and Medical Malpractice Defense Practice Groups, and a former member of the firm’s executive committee, David has tried hundreds of complex cases in both state and federal courts, many carrying million-dollar exposures for the clients he has represented.

Ada Kozicz concentrates her practice on regulatory and transactional matters within the healthcare industry.

An associate in Rivkin Radler’s Health Services Practice Group, Ada represents healthcare providers, medical groups, hospitals, outpatient facilities, and other business entities that serve the healthcare industry. She advises clients on a wide variety of legal matters, including formation of business entities, joint ventures, employment negotiations, and compliance programs involving Medicaid and Medicare, Stark and Anti-Kickback Law, and the False Claims Act.

Ada also practices in Rivkin Radler’s Privacy, Data & Cyber Law Practice Group, where she advises clients both in and outside of the healthcare industry on complying with HIPAA and the HITECH Act and responding to any threats or breaches to an organization’s privacy and cyber security.