Lavern’s Law and the Discovery Rule in Failure to Diagnose Cancer Cases in New York State

On January 31, 2018, New York Governor Andrew Cuomo signed “Lavern’s Law.” In doing so, New York extended its medical malpractice statute of limitations in failure to diagnose cancer cases by applying a date of discovery rule. Prior to Lavern’s Law, New York only permitted a date of discovery rule to apply in actions premised upon a foreign body left behind during surgery.

Lavern’s Law is named after Lavern Wilkinson, who visited a municipal hospital in New York City on February 2, 2010, with complaints of chest pain. Various studies, including a chest x-ray, were performed, and Ms. Wilkinson was discharged home with no instructions for further or follow-up care. The radiologist who interpreted the chest x-ray appreciated a suspicious mass on Ms. Wilkinson’s right lung, but this information was not communicated to her before she left the hospital. Ms. Wilkinson returned to the same hospital’s emergency department in May 2012 with complaints of a chronic cough. A chest x-ray revealed Ms. Wilkinson had cancer which had spread to both lungs. Further imaging revealed disease in her liver, brain and spine. A physician at the hospital advised Ms. Wilkinson her cancer diagnosis had not been appreciated by the hospital’s treating clinicians in 2010 when it was still treatable. However, in 2012 she was informed she had terminal cancer and had an estimated six months to one year to live.

New York’s statute of limitations provision as it existed in 2012, CPLR § 214-(a), required commencement of a medical malpractice lawsuit within two years and six months of the alleged negligent care in the absence of a tolling of the statute of limitations through the continuous treatment doctrine. Since Ms. Wilkinson was treated at a New York City hospital, she was obligated to file a notice of claim with the City of New York within 90 days of the alleged negligent treatment and to initiate suit within 15 months of filing the 90-day notice.

Accordingly, she was barred from beginning litigation by the notice of claim provisions applicable to New York City hospitals at the time and the lack of a discovery rule in New York medical malpractice actions, except for those in which a foreign body had been left behind in a patient during surgery. In foreign body cases, a patient has one year from discovery of the foreign body to file a lawsuit in New York.

A great deal of media attention was brought to Ms. Wilkinson’s situation after her cancer was diagnosed in 2012. When she passed away in 2013 at age 41—a single mother leaving behind a disabled, autistic child who required full-time care—a movement was begun to add a discovery rule to all medical malpractice actions in New York. Legislation was drafted, but substantial progress was not made towards enacting a new law, including a discovery rule, until June 2017. At that time, a Senate Bill was put forward narrowing the discovery rule to actions involving negligent failure to diagnose cancer. The legislation was promoted as beneficial to taxpayers as individuals deprived of the opportunity to pursue litigation were, in some instances, required to have extensive treatment paid for by taxpayers through Medicaid due to the lack of available compensation from litigation. Following further deliberation and debate, a final Bill was submitted to Governor Cuomo for his signature.

The law signed by Governor Cuomo amends CPLR § 214-(a) and § 203(g), which state that an action based upon negligent failure to diagnose a malignant tumor or cancer, whether by act or omission, shall be commenced within two and one-half years of the following:

(a)        When the person knows or reasonably should have known that such negligent act or omission has caused the injury; or

(b)        The date of the last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the accrual of an action.

The law includes a limitation that “such action shall be commenced no later than seven years from the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to said act, omission or failure.” Under this provision of Lavern’s Law, litigation may be initiated up to seven years after the last date of treatment. However, New York law only requires health care providers keep records relating to adult patients for six years. Lavern’s Law makes it a best practice for health care providers to keep all records, diagnostic studies, and related reports for ten years after the last date of treatment or payment from a patient or collateral source, whichever is later, to ensure complete records are available to provide the best possible defense in any litigation.

Lastly, Lavern’s Law and its extended statute of limitations increases the importance of thorough documentation at the time of treatment. As time passes and memories fade, staff members become unavailable and standards of care evolve, making reconstructing the rationale behind treatment decisions years after they were made more difficult. Indeed, without complete documentation detailing the patient’s complaints, history, differential diagnoses, studies ordered, results, and treatment directives or how they were explained to the patient, as well as follow-up performed or recommended, the defense of an action becomes more complicated, particularly in a case involving a “date of discovery.”

*Charles is a shareholder in our Rye Brook, New York office. He can be reached at 914.977.7312 or CTGura@mdwcg.com.

_{Defense Digest, Vol. 24, No. 4, December 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}