New York’s Lavern’s Law Expands the Discovery Rule Such that the Statute of Limitations Runs from the Cancer Diagnosis

Litigation Alert

On January 31, 2018, New York State enacted Lavern’s Law which will have a profound impact on medical malpractice actions related to the alleged failure to diagnose cancer claims. Under the new law, the statute of limitations for an alleged missed diagnosis of cancer is two-and-a-half (2½) years and runs from the date the patient discovers the misdiagnosis. The law establishes an “outer limit” of seven years from the date of the occurrence (i.e. the missed diagnosis). 

Lavern’s Law is named after Lavern Wilkinson, a forty-one (41) year old woman who died in 2013 from complications related to lung cancer. In 2010, Wilkinson presented to a hospital where the hospital allegedly failed to diagnose her lung cancer. As New York’s discovery rule was limited, and only related to the discovery of foreign objects in the body, the statute of limitations had expired by the time Wilkinson learned of her cancer. Wilkinson’s case rose to national attention after multiple media outlets picked it up and ran stories regarding Wilkinson and her disabled teenager daughter.  The New York Legislature passed Lavern’s Law, Senate Bill S6800, in June 2017, which amended the prior bill where the prior bill would have extended the discovery rule to all medical malpractice cases, not only those involving an alleged misdiagnosis of cancer. 

Significantly for medical providers and potential defendants, there is limited retroactive action under the final version of the bill. Plaintiffs are barred from reviving claims where the statute of limitations has already expired. However, there is a limited one-time exception to that bar, reviving claims where the statute of limitations ran between March 31, 2017 and January 31, 2018. In those limited circumstances, the plaintiffs have been afforded a six-month window to sue, which expires on July 31, 2018.

 

The takeaways for medical providers are that (1) the new law only applies to cancer cases, (2) there is a potential that time-barred suits will be filed in the grace period up to and including July 31, 2018 where the statute of limitations defense will not apply, and (3) the date of service, or the occurrence, is no longer the relevant date for purposes of analysis of the statute of limitations. While there is no longer the fear of an influx of time-barred suits as could have been the result of the early versions of the bill, medical providers need to be aware that the parameters of statute of limitations defenses in misdiagnosed cases are changed.