New York is set to introduce a sweeping change to its medical malpractice laws that greatly helps cancer patients who were improperly diagnosed. Under Lavern’s Law, patients have up to 2½ years to pursue a medical malpractice lawsuit after discovering they have been diagnosed with cancer. Currently, patients have 2 ½ years from when the negligence occurs — not when it is discovered — to file a claim.
“This is a monumental step forward for cancer patients in New York,” says attorney Allan Zelikovic, head of Weitz & Luxenberg’s medical malpractice unit. “There was always an inherent unfairness for patients in New York because often they do not realize they’ve been misdiagnosed for years. By the time our clients have been told that their mammograms, X-rays, and other test results were misread it may already be too late to sue.”
Lavern’s Law is named for Lavern Wilkinson, a single mother who died in 2013 from a curable form of lung cancer. Doctors missed the cancer in a chest X-ray. By the time it was caught two years later, she was given 10 months to live. When she passed away, Wilkinson was raising her 15-year-old autistic and developmentally disabled daughter.
“An advanced case of cancer is devastating, and a medical malpractice suit is never a patient’s preferred option,” points out Zelikovic. “It’s bad enough to get cancer, but it’s much worse when patients realize that their doctor could have and should have caught it earlier and now the damage is irreparable.”
Zelikovic says the law redistributes malpractice costs by putting the burden on the doctors — the responsible party — rather than on the patients. He also believes the law will do a better job of holding doctors accountable for their mistakes, which should ultimately decrease the number of medical malpractice lawsuits in the long term. The existing law meant that sometimes the statute of limitations for patients to file lawsuits had expired before they even knew of their illness.
While the law applies to patients moving forward, it only gives those who have been diagnosed in the past 10 months, and whose cases would otherwise be time barred under the old law, a window of six months to bring a claim. The new law would still bar lawsuits, regardless of the date of diagnosis, when the treatment complained of occurred more than seven years prior to the commencement of a lawsuit.
Weitz & Luxenberg has more than three decades of experience handling complex medical malpractice and hospital error lawsuits. The firm has overseen more than 1,000 claims for wrongful death, injury and misdiagnosis, and won billions of dollars in verdicts and settlements for clients.
Zelikovic encourages any patient who has been diagnosed with cancer to contact the firm to explore their legal options.