In January 2018, CPLR 214-a was amended to change the statute of limitations in delayed diagnosis of cancer actions.
The amendment provides that an action against a medical provider for the delayed diagnosis of cancer may be brought either 2 ½ years from when the patient knew or should have known of the alleged negligent failure to diagnose the cancer, but no later than seven years from the alleged negligence, or 2 ½ years from the last occasion where there is continuous treatment.
A similar discovery rule also applies to state and municipal hospitals and clinics pursuant to CPLR 203(g)(2).
Before the amendment to CPLR 214-a, the rule in New York State was that a patient would only have 2 ½ years from the date his or her doctor, a radiologist, or pathologist, missed the diagnosis of cancer. For many people, it is not even known that there has been a delayed diagnosis of the cancer until months or years later, and in some cases, not until after the statute of limitations has run.
This is exactly what happened to Lavern Wilkinson. By the time Lavern was properly diagnosed with the lung cancer in 2012, the statute of limitations for her to bring a medical malpractice action was gone.
In February 2010, Lavern had a chest x-ray ordered during an emergency room visit. The radiologist who reviewed the chest x-ray saw a suspicious mass in Lavern's right lung, but she was never told the results of the chest x-ray.
Then, in May 2012, Lavern returned to the same ER with a chronic cough and another chest x-ray was ordered. It was then discovered that the cancer had spread to both of Lavern's lungs, her liver, brain and spine.
If the lung cancer had been diagnosed in 2010, it could have been treated with surgery. By May 2012, the lung cancer was stage four and terminal.
Lavern's wish was for the law to change so that what happened to her did not happen to anyone else.
On January 31, 2018, Governor Cuomo signed into law a medical malpractice bill called "Lavern's Law."
This bill amended the statute of limitations for delayed diagnosis of cancer cases to 2 ½ years from the date of the discovered delayed diagnosis of cancer, up to seven years from the date of missed diagnosis, or 2 ½ years from the last occasion where there is continuous treatment.
This is an important amendment to the statute of limitations in medical malpractice cases and it will allow many patients to pursue possible claims for delayed diagnosis of cancer which previously may have been time barred.