New York Court of Appeals Extends Wrongful Birth Statute of Limitations for Two New York Couples

The process of undergoing invitro fertilization can be an emotional roller coaster with added financial and physical strain. Imagine going through years of this and finally being able to conceive a child, only to find out after it is born that it has a genetic condition that causes developmental delays, learning disabilities and cognitive impairments. Unfortunately, this happened recently to two couples in New York after receiving donor eggs at a fertility clinic. It wasn’t until after their children were born that the children were diagnosed with a genetic condition, Fragile X Syndrome.

After an investigation, it was found that the egg donors were both carriers of Fragile X Syndrome and over 2 years after the birth of the children, both couples brought law suits against the doctor and fertility clinic. Their allegations? “Wrongful birth.” Essentially, this means they are suing for the exceptional expenses in raising a special needs child. After the suits were filed, the doctor and the fertility clinic argued that the statute of limitations for medical malpractice is 2 ½ years from the date of the malpractice (in this case the date the embryos were implanted) begins to run from the date the malpractice occurred and that in these cases, this statute had expired.

On December 14, 2017, the New York Court of Appeals agreed with the lower court’s decision that the wrongful birth cause of action did not begin to run until the birth of the disabled children since until the children were born, the extraordinary costs of raising the children could not be determined. Despite extending the statute of limitations in these two cases, the Court of Appeals made clear that this was a narrow decision based on the “unique features” of these cases.

New York’s medical malpractice laws are intricate, and it is important that if you or a loved one have suffered as a result of a doctor or hospital’s negligence, you seek the knowledgeable advice of experienced attorneys. The attorneys at Spiegel, Brown and Fichera, LLP will always evaluate your case free of charge and give your case the full attention it deserves.

Missed Cancer Diagnoses: New York’s New Law Extends Patients’ Time to Sue

New York Mother's cancer goes undiagnosed, sparks laws to change

On March 7, 2013, Lavern Wilkinson, a 41-year-old single mother of a mentally retarded and autistic child, succumbed to cancer at Long Island Hospital. Her death could have been either prevented or prolonged if she had been properly diagnosed with lung cancer when she sought emergency medical treatment for chest pain at Kings County Hospital in 2010. Despite the fact that an x-ray showed a mass in her lungs, Ms. Wilkerson was not told and was discharged with instructions to take Motrin for her pain. As a result, her curable form of cancer went undiagnosed until 2 years later when the cancer had already spread to both lungs, her liver and spine and she was given 6 months to live.

Current Law

Under New York’s current law, the statute of limitations for filing a medical malpractice case against a hospital is 2 ½ years, or 2 years and 3 months when it is a municipal or governmentally run hospital, as was the case with Kings County Hospital where Ms. Wilkerson went in 2010. Although there are exceptions to this time period in which to sue, none apply to failure to diagnosis an illness. Generally, in New York medical malpractice cases, the time to sue begins to run from the date the malpractice was committed. Unfortunately, New York is one of 6 states that does not have a medical malpractice statute that begins to run from the date the malpractice is discovered.

Recent Changes

As a result of Lavern Wilkerson’s tragic story, New York reform advocates have pushed for extending the statute of limitations for missed diagnoses. Although the original proposed bill extended the statute of limitations for all missed diagnoses, the bill was amended to limit extending the statute of limitations only for missed cancer and malignant tumor diagnoses.

This amended bill was signed into law on January 31, 2018 by Governor Cuomo. The new law permits cancer and malignant tumor patients who failed to be diagnosed with cancer sooner, to sue within 2 ½ years (2 years and 3 months if it’s a municipal hospital or facility) from the date they are actually diagnosed with cancer. Hopefully, when this new law goes into effect, it will enable families like Ms. Wilkerson’s to receive some compensation for the grave and sometimes fatal consequences and tribulations of missed diagnoses.

The New York personal injury lawyers at Spiegel, Brown, & Fichera have been fighting for victims of medical malpractice since the 1960′s. Contact us today for a free consultation if you need help as a result of a doctor’s negligence.

BABIES INJURED BY MEDICAL MALPRACTICE HAVE NO CHAMPION IN GOVERNOR ANDREW CUOMO

Without much doubt, the number one category of cases in which we receive telephone solicitations for legal consultations is that of medical malpractice. Probably 95 percent of these inquiries result in our taking the time to chat with the potential client and then to explain why, even in cases of rather clear medical negligence, there is no basis to bring a suit.

Why is this? The answer is that, contrary to the insurance industry’s expensive advertising campaign, the doctors have “won the war” in New York State on the medical malpractice front. How have they done this? These are some of the critical ways:

a) Unlike any other type of personal injury case in New York State such as a car accident or slip and fall, a lawyer may not even file a medical malpractice case unless and until he or she has obtained all the medical records, reviewed the medical facts and the legal issues, referred the case to an independent expert for a formal review (an expensive and time consuming process that must result in a positive expert finding of malpractice and significant harm to the patient).

b) An industry-wide commitment not to settle even the most clear cut cases of doctor-inflicted injury until the case is literally on the eve of trial (unlike most other personal injury cases where a lawyer who is able to prove a clear cut injury and strong fault can achieve a fair settlement in timely fashion for his client).

c) Special rules that limit the lawyer’s contingency fees to as little as one half of the normal contingency fee percentage that is permitted in all other types of injury cases in New York.

Because of the tremendous investment of time and money in bringing these cases, medical malpractice cases are only brought by the most experienced and best trial lawyers in this State. They are also defended by among the very best of the civil defense bar (with all due respect to the automobile insurance company’s lawyers, those that defend doctors and hospitals in medical malpractice cases, are paid three or four times as much and are regarded as extremely competent advocates). Despite the fact that these cases are brought by the very best trial lawyers and have been reviewed and certified to be the result of serious medical negligence by independent medical experts, almost three out of four jury verdicts in this State are in favor of the doctor or the hospital.

In the face of this, the insurance industry has created a web of lies and myths about a “litigation explosion” and alleged punitive damage awards which have shattered New York’s economy. This dishonest campaign of the insurance industry has been ignored by the media (see, however, “Selling Out Injured Baby Rights”, Ralph Nader, www.nader.org).

The fact of the matter is that there are no punitive damages permitted in New York State for medical negligence. The vast majority of the seven figure medical malpractice awards/settlements are in situations involving avoidable birth defects to brain-damaged and other permanently handicapped babies who are victimized — usually while still in the womb — by careless doctors or nurses. These are, obviously, significant exceptions. Nevertheless, these few large awards — almost invariably well justified — are thrown up by the insurance industry to mislead, not only the public, but the medical practitioners themselves to create an atmosphere of fear and of litigation run amok.

Now Governor Andrew Cuomo, in a most cynical fashion, has attempted to curry favor with the insurance industry in Albany (the strongest lobby in our State Capitol) by submitting a budget which would include, buried in the various expense items of the State, a $250,000.00 cap on pain and suffering awards in birth defect and other brain-damaged baby cases in New York.

It is urged that all citizens contact Governor Cuomo’s office as well as your local Assemblyman and Senator and tell them that you oppose Governor Cuomo’s medical malpractice Proposal Number 131.