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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 or 716-858-3871, Melissa Zambri, Co-Chair of the Firm’s Health Care & Human Services Practice Area, at or 518-429-4229, or Susan Benz, Co-Chair of the Firm’s Health Care & Human Services Practice Area, at or 716-858-3812 if you have any questions or need assistance in any way.


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