Patient Rights Suffer Setback With Failure of Lavern’s Law

Patient Rights Suffer Setback With Failure of Lavern’s Law

The recent failure in Albany of a measure known as “Lavern’s Law” means that New York remains one of only six states without a “date of discovery rule” for medical malpractice claims. This means:

- Malpractice victims have just 2 ½ years from the date harm actually occurred to sue if it occurred in a private facility

- They have only 15 months to sue if the harm occurred in a municipal facility

Lavern’s Law would have “started the clock” when the victim discovered, or could have reasonably known, about the harm

The proposed law was named after Lavern Wilkinson, a Brooklyn mother who died in March after doctors failed to inform her of a lung nodule they detected back in 2010. According to a New York Daily News article, when Wilkinson started having breathing problems, another doctor discovered the mistake and apologized for what happened — and that she would die from the preventable error. By then it was too late for Wilkinson to sue for malpractice.

In a similar case, Marilyn Veritzan of Long Island had an emergency CT scan after a 2009 accident. Doctors detected a shadow on her lung, but failed to perform the correct follow-up, telling her all was well. A year and a half later, after she was diagnosed with Stage 4 incurable lung cancer, a family member recalled her ER scan. Again, it was too late to sue.

Supporters of Lavern’s Law say the current system can victimize patients twice – once by a negligent medical provider, and then by the legal system that denies their right to justice. Still, the powerful medical lobby won another round – for now.