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  4.  » Unfair Law Prevents Victims of Medical Malpractice from Obtaining Justice in New York

Unfair Law Prevents Victims of Medical Malpractice from Obtaining Justice in New York

New York State continues to be way behind the curve when it comes to protecting medical malpractice victims. Below is an illustration of how a New Yorker was victimized twice because of an antiquated law.

Whenever an individual is injured as a result of the negligence of another, the injured person must bring a cause of action within the statute of limitations. In actions involving injuries that are caused by the negligence of medical professionals, commonly referred to as “medical malpractice actions”, the statute of limitations is 2 1/2 years from the date when the malpractice occurred. This begs the question of what happens when the patient doesn’t even know that the medical provider was negligent until after the time to bring a case has elapsed. Typically, this comes up when a physician fails to identify something on a cat scan, x-ray, mri or other diagnostic test. Years later, the patient is diagnosed with a terminal disease like cancer. Looking back, records reveal that a physician failed to identify the cancer on a diagnostic test, causing the patient to lose the opportunity to treat and fight this destructive disease. In New York, the answer is tragic, as the patient is victimized all over again, left without a remedy because the discovery of the malpractice came after the statute of limitations expired. Imagine being given a death sentence due to someone else failing to do their job and then being told you have no recourse to protect and provide for your family.

In most states, this unjust result has been rectified. More specifically, the statute of limitations on medical malpractice actions does not begin to run until the malpractice is discovered. This rule, known as the “date of discovery” rule, allows unknowing victims of malpractice to bring an action against the negligent party upon discovery of the malpractice. This makes perfect sense. How can you protect yourself legally from something you don’t know about? The answer is you can’t – – but somehow the New York State legislature has failed to move forward with laws that are consistent with the medical technology that has been in place for decades.

Unfortunately, New York, a state that prides itself as being progressive and forward thinking, is one of six states that has no “date of discovery” rule. As a result, countless victims of medical malpractice are forever barred from seeking justice.

This is precisely the case of a 41 year old single mom in Brooklyn that was recently diagnosed with terminal cancer. Following a 2010 chest x-ray, no one from the hospital ever told Lavern Wilkinson that her x-ray revealed a lung nodule, the beginning of cancer. More than 2 1/2 years later, she discovered she had terminal cancer. However, due to the 2 1/2 year statute of limitations in New York, and without a date of discovery rule, Ms. Wilkinson is forever barred from any legal remedy for the negligence of the hospital in failing to timely diagnose and cure her cancer. It is tragic stories like these that is resulting in proposed legislation to bring a “date of discovery” rule to New York.

Block O’Toole & Murphy, LLP is one of the law firms in New York that is tirelessly advocating for victims’ rights, including the passing of legislation for a “date of discovery” rule. If you or a family member have been the victim of medical malpractice, please feel free to contact us at 212-736-5300 for a free consultation or visit our website at