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June 14, 2017

Proposed Bill Would Allow Date Of Discovery To Control Statute Of Limitations In Medical Malpractice Actions

In New York, medical malpractice actions must be commenced within two and one-half years from the date of the alleged negligent act or omission that caused the patient's injury. Where medical malpractice is alleged against a public hospital, the statute of limitations is fifteen months from the date of the alleged malpractice.

New York is one of six states in which the statute of limitations for medical malpractice claims begins to run from the date of the alleged malpractice rather than from the date that the patient discovered the malpractice. In some instances, the statute of limitations may have expired before the patient learns that medical malpractice was committed.

As it concerns actions for medical malpractice, the lone exception to this rule in New York, at least for the time being, involves those cases where a foreign object has been left inside the patient during a surgical procedure, in which case the patient has one year from the date he or she discovers the object to commence a lawsuit. In the remaining forty-four states, the aforementioned exception is the rule: for all medical malpractice claims, the statute of limitations clock begins to run from the date the alleged malpractice is (or should have been) discovered, whether that be a foreign object left inside the patient, a misdiagnosis, a failure to diagnosis, etc.

Proposed legislation before state lawmakers in New York would significantly alter medical malpractice law by potentially allowing patients to sue years after an alleged misdiagnosis or treatment. The bill that is currently before the New York State Legislature, known as "Lavern's Law," would amend the statute of limitations in medical malpractice actions to start the clock "from the date an injured patient discovers, or should have discovered, that their injury was caused by malpractice" – so long as the lawsuit is filed within 7 years of the act constituting the malpractice. Similar "discovery" rules already exist in most states.

Those supporting the bill say that when it comes to complex conditions such as cancer, it can take several years for patients to realize they were misdiagnosed or otherwise mistreated by a medical professional. Indeed, the patient after whom the bill is named, Lavern Wilkinson, died in March 2013 from a curable form of lung cancer after doctors at a public hospital failed to inform her of a suspicious mass found on a chest x-ray taken three years earlier. Mrs. Wilkinson only learned of her diagnosis after the statute of limitations had already expired.

Under the proposed legislation, Mrs. Wilkinson would have had one year and 90 days from the time she learned of her diagnosis to commence an action against the public hospital where she was seen for her chest x-ray. If Mrs. Wilkinson had been treated in a private facility, the statute of limitations would have been two and one-half years from the date her cancer was discovered.

Opponents of the bill argue that it goes too far by allowing date-of-discovery cases to be filed as long as seven years after the alleged act – far longer than most other states. In addition, a number of states with liberal statutes of limitations on malpractice claims also have caps on damages for pain and suffering – New York does not. Furthermore, there are valid concerns that such a rule would only increase the premiums for medical malpractice insurance – in a state already plagued by high premiums.

Nevertheless, the bill has garnered significant support in the Legislature. For several years now, similar versions of the bill have been passed in the state Assembly, and by all accounts, the current iteration is headed for passage again this year. The bill, however, has failed to reach the Senate floor for a vote. There have been calls for sponsors of the bill to file a motion for full chamber consideration, which under Senate rules requires the support of "three-fifths of members elected," or thirty-eight senators. At last count, there were thirty-nine sponsors in the sixty-three-member Senate, one more than required to force full chamber consideration.

If you require further information regarding the content of this alert, please contact Dennis R. McCoy, Chair of our Professional Liability Practice Area, at (716) 566-1560 or


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