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.