Skip to Main Content
Services Talent Knowledge
Site Search
Menu

Blog Post

February 9, 2018

New York Has a New "Discovery Rule" for Medical Malpractice Actions Involving Cancer

Effective January 31, 2018, New York State adopted a new discovery rule applicable to medical malpractice lawsuits arising from the alleged failure to diagnose cancer or a malignant tumor. The new rule amends CPLR 214-c by expanding the statute of limitations period for medical malpractice actions brought in New York. The new legislation, titled “Laverne’s Law,” is named for Laverne Wilkinson, who died of lung cancer in 2013. Ms. Wilkinson did not discover she had cancer until three years after x-rays were taken revealing a suspicious mass on her right lung. She was barred from bringing a lawsuit against the relevant medical providers because the applicable two year and six month statute of limitations period had expired.

The period of time to bring a medical malpractice action remains two years and six months from the alleged negligent act or omission or from the last date of treatment where there is continuous treatment for the same condition or illness, whichever is later. However, now when an action is based on the alleged failure to properly treat or diagnose cancer, an action can be commenced within two years and six months after the patient knows or reasonably should have known that such negligence caused them injury. The new rule is not indefinite as it establishes a seven-year time limit on its use from date of the alleged negligence or last date of continuous treatment.

This new rule is particularly significant for state and municipal hospitals and clinics, which are traditionally subject to separate and much shorter statutes of limitations. Traditionally, a person bringing an action against a state-run entity must file a notice of claim within 90 days of the alleged negligent act or omission and then file a formal lawsuit no more than one year later. The new discovery rule could potentially extend the time to file a notice of claim up to seven years and 90 days, seven times the original time limit.

Plaintiffs’ attorneys applaud the new legislation, pointing out that New York is one of the last states to adopt this discovery rule. Health care providers are concerned that it will increase health care costs even further. Another concern is that other aspects of health care will be impacted, such as increased record retention requirements and the unavailability of affordable professional liability insurance.

Barclay Damon’s health care team has vast experience in representing and advising all types of medical providers. Please contact Eric C. Naegely at enaegely@barclaydamon.com or 716-858-3871, Melissa Zambri, Co-Chair of the Firm’s Health Care & Human Services Practice Area, at mzambri@barclaydamon.com or 518-429-4229, or Susan Benz, Co-Chair of the Firm’s Health Care & Human Services Practice Area, at sbenz@barclaydamon.com or 716-858-3812 if you have any questions or need assistance in any way.

Featured Media

Alerts

EPA Lists Two New "Forever Chemicals" Under CERCLA

Alerts

NYS Governor Hochul Announces Final RFP for New Certified Community Behavioral Health Clinics

Alerts

The Second Department Affirms Successful Storm in Progress Defense of Slip and Fall Case

Alerts

The New York FY 2025 Budget – CDPAP FIs Under Threat

Alerts

Website Accessibility Lawsuits: Several "Tester" Plaintiffs—Anderson, Beauchamp, Murray, Angeles, Monegro, and Bullock—Targeting Businesses in Recent Flurry of Lawsuits

Alerts

Updated Bulletin on Tracking Technologies in the Health Care Industry

We're Growing in DC!

We’re excited to announce Barclay Damon’s combination with Washington DC–based Shapiro, Lifschitz & Schram. SLS’s 10 lawyers, three paralegals, and four administrative staff will join Barclay Damon while maintaining their current office in DC’s central business district. Our clients will benefit from SLS’s corporate, real estate, finance, and construction litigation experience and national energy-industry profile, and their clients from our full range of services.

Read More

This site uses cookies to give you the best experience possible on our site and in some cases direct advertisements to you based upon your use of our site.

By clicking [I agree], you are agreeing to our use of cookies. For information on what cookies we use and how to manage our use of cookies, please visit our Privacy Statement.

I AgreeOpt-Out