Sometimes the application of laws can have a chilling effect on innocent victims. New York’s antiquated ‘Date of Discovery’ laws punish a victim in the harshest of terms. The law remains without good reason. We analyze it below, using the below article to hammer home the point.
New York is a destination for patients throughout the country who seek what they hope is the best medical treatment there is to offer. Sometimes the treatment rendered by medical professionals is negligent causing the patient injury, so called “medical malpractice”.
What should you know about Medical Malpractice?
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, the statute of limitations is 2 1/2 years from the date when the malpractice occurred. What this statute of limitations unfairly ignores is the scenario where a patient does not discover the malpractice until after that time has elapsed. These patients are often given a death sentence without any recourse to address another’s terrible mistake.
Such is the case for Elissa McMahon, a 46 year old single mother to a teenage son, who was diagnosed with stage 4 ovarian cancer almost two years ago. It appears that her cancer could have, and should have, been discovered at a much earlier stage, when it was far more treatable. In 2012, Ms. McMahon, who lives in a Boston, Massachusetts suburb, traveled to New York City’s Lenox Hill Hospital for removal of a fibroid. A pathologist who reviewed tissue samples taken from the fibroid determined that there were no signs of cancer. In reality approximately 10 out of 40 pathology slides showed evidence of her cancer at that time. However, Ms. McMahon relied upon the pathologists clean bill of health, to her own detriment, and it was not until she later went to the emergency room at a Boston area hospital, that she learned that she not only had cancer, but that it had spread in the form of a large tumor on her spine and metastatic lesions on her liver. The discovery came mere months after the statute of limitations had run on her ability to file a medical malpractice lawsuit against those responsible for failing to diagnose her cancer in 2012.
Unbelievably, New York remains one of six states in the United States with this antiquated law, which starts the statute of limitations clock running not on the date when the medical malpractice occurred, but on the date when the medical malpractice was discovered. Ms. McMahon is renewing a charge to get Laverne’s Law passed in New York.
Laverne’s Law is legislation that was proposed in 2013 to the New York State legislature. It is named after Lavern Wilkinson, a 41-year-old Brooklyn mom who died in 2013 of a curable form of lung cancer after doctors at Kings County Hospital misdiagnosed her illness. The legislature has yet to correct the problem and pass this law.
Inaction on the part of the New York State legislature, as well as the antiquated law, is depriving victims of medical malpractice of their rights, and likely costing lives in the process as the accountability on the medical profession is not as stringent as it should be. Passing Laverne’s Law is one important step in the right direction. New York may be on the cutting edge of some medical technologies, but it is stuck in the past when it comes to protecting patient’s rights.
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. The firm has recovered nearly $1 billion in verdicts and settlements for their clients.