Why Did Lavern's Law Fail?
In June of 2016, the NY State Legislature failed to pass a bill that would have began the window of time a patient has to bring a medical malpractice claim from when an error is discovered by the patient and not when the mistake occurred. The bill was named after Lavern Wilkinson, who died in 2013 from a curable form of lung cancer after doctors failed to notify her of a suspicious mass seen on x-ray until after the cancer had spread. By that time, the 15-month window to bring a negligence claim had expired, leaving Lavern and her family no recourse despite a clear instance of medical malpractice.
Although Lavern’s Law had previously passed in the NY State Assembly and had the support of NY Governor Andrew Cuomo, it failed to gain support in the legislature. New York is now one of six states without a “date of discovery” law.
Requiring patients to discover a medical error or misdiagnosis and bring a claim within a 15-month window unreasonably shifts the burden to the aggrieved party, especially when the error or misdiagnosis involves an indolent disease process, such as cancer. In effect, an aggrieved lay person is held to a higher burden of discovering a mistake than the physician entrusted to care for them, a result which seems paradoxical.
Read more about the future of Lavern’s Law here: