New York State is far from the worst when it comes to how victims of medical malpractice are treated in court. For example, we do not have set limits on the amount of money damages that can be awarded to a plaintiff for so-called non-economic damages, that is, the damages that can be awarded to compensate for the victim’s pain and suffering. Other states do, in the form of “caps,” often placed at $250,000.
But medical malpractice victims can be hurt, a second time, by unrealistic limitations in the time they have to bring an action in court. Barring exceptional circumstances, malpractice victims who miss such a deadline, called a statute of limitations, are forever barred from having their complaint heard in court. In New York, a victim of medical malpractice has 2 and 1/2 years from the date of the malpractice to start a lawsuit. That may sound like a sufficient amount of time to realize that a medical error was made, and to hire a lawyer to do something about it.
But what if, through no fault of your own, you don’t discover the malpractice until more than 2 and 1/2 years have passed? Right now, you, and every other New Yorker, are powerless to seek compensation. But there is a groundswell of support for a law that may change that unfortunate situation. It is called “Lavern’s Law,” after a New Yorker who fell victim to the unfairness of the current statutes of limitations. This story in the NY Daily News provides some background. Lavern Wilkinson had a curable case of lung cancer, but her doctors failed to diagnose it on time. By the time they, and Lavern, realized their mistake, it was more than 2 and 1/2 years from the time of the misdiagnosis, and neither she, nor the family she left behind, had any recourse in our court system.
As this article in The Journal News points out, New York is one of only 6 states in the U.S. that fails to use a “date of discovery’ rule for medical malpractice victims, i.e., a rule that allows a malpractice victim to bring suit within a set time from the date of discovery of the malpractice–and not just the time of the malpractice.
As my colleague, Eric Turkewitz, stresses in his post on the topic, it’s time to pass Lavern’s Law, before this nonsensical void in our law works to deprive someone else of his or her right to hold a negligent doctor accountable. Eric’s post provides helpful information on how you can help advocate for getting Larvern’s Law to a vote on the Senate floor, and I hope you will do so. New York’s victims of medical malpractice deserve better.