On behalf of Smiley & Smiley, LLP posted in Medical Malpractice on Wednesday, July 10, 2013.
The name Lavern Wilkinson has become famous in certain New York communities. Her story inspired the creation of a bill aptly named ‘Lavern’s Law.’ Lavern was a mother from Brooklyn who was treated in 2010 at an area hospital. Her care team failed to diagnose her lung nodule which later developed into terminal cancer. As a result of New York’s medical malpractice statute of limitations, she was unable to sue her care team because too much time passed between her initial appointment and her cancer discovery.
Lavern died in March hoping that the law that inspired her name would pass and allow other similarly situated victims to sue for malpractice through a statue of limitations amendment. Unfortunately, the bill did not pass in 2013 and New Yorkers will be forced to wait until it can be taken up again in the 2014 legislative session. Even though 30 state senators were prepared to vote in favor of the bill, the state senate leader failed to allow it to come to a vote. The bill did come up for a vote in the Assembly but it was put on hold when that chamber recognized that it was doomed in the Senate.
When Lavern’s mass first showed up on an x-ray, it was small and could have been treated. However, by the time that her cancer was properly diagnosed, it had spread and become incurable. The reason that Lavern could not sue when the mistake was discovered is that New York is one of only six states that does not allow medical malpractice victims to sue from the point in time that they could have reasonably known that a mistake had occurred. Rather, the statute of limitations begins running on the day that the mistake occurs.
Lavern’s Law is a just, sensible and straightforward piece of legislation that should have passed with urgency and proper consideration. Hopefully it will be treated as such during the next legislative session.
Source: New York Daily News, "Proposed amendment to state's medical malpractice rules dies in Albany," Heidi Evans, June 25, 2013
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