Assemblyman Miller Helps Pass Lavern’s Law to Ensure Patients Can Seek Justice

November 25, 2015

Assemblymember Miller (D-Woodhaven) announced he helped pass legislation, known as Lavern’s Law, which allows victims and their families more time to file lawsuits in cases where they have been misdiagnosed (A.285).

“If a patient is misdiagnosed or treated in a negligent manner, they should be able to seek recourse,” Assemblymember Miller said. “This legislation would do away with a very arbitrary and unjust loophole in existing law which prevents patients and their families from getting the justice they deserve.”

The bill is named in memory of Lavern Wilkinson, a mother who died in 2013 of a treatable form of lung cancer. The Brooklyn hospital she attended three years earlier negligently failed to notify her of a suspicious mass in her chest X-ray. By the time she was diagnosed with cancer, it had spread throughout her body and the deadline to seek justice in court had already passed.

Ms. Wilkinson is survived by her daughter, Micalia, who suffers from a severe form of autism and requires extensive care. She is being looked after by her great aunt, who is herself a survivor of breast cancer. The settlement agreed upon by the hospital and the city is only a fraction of what the family could have been awarded from a medical malpractice suit — vital funds that would have greatly helped the family care for Micalia.

Currently, victims must file a legal claim within 15 months for claims against public hospitals and 30 months for private ones. However, the clock starts as soon as the negligence or misdiagnosis occurs, not when the patient discovers the mistake.

Thus, present law precludes victims of medical negligence from going to court even when they had no basis to know that medical negligence had been committed, which is not unusual where symptoms indicating the malpractice don’t develop until years after the time to bring a claim has expired.

That is extremely problematic in cases like Ms. Wilkinson’s, where symptoms may not even be noticeable until after the statute of limitations has expired. This legislation would require courts to start counting from the time a victim discovers the injury, giving them the opportunity to rightfully press any claim.

The standard is already law in 44 other states and applies to cases against the U.S. government. In addition, New York already uses the same standard in other types of civil cases.

“Families like Lavern’s and victims across the state deserve better protection when it comes to their health care,” said Assemblymember Miller. “I call on my colleagues in the state Senate to join us in passing this bill to ensure all New Yorkers are treated fairly.”