Andrew Cuomo (51864)
Credit: Pat Arnow

A bill that could potentially save New York patients some pain is sitting on the governor’s desk not signed.

Bill A8516/S.6800, known as “Lavern’s Law,” would open the window to bringing medical malpractice cases involving cancer when the patient discovers the error and not when the mistake happened. Under the current law, a misdiagnosed cancer patient has a two-and-a-half-year window— after the act of negligence occurred—to file a medical malpractice lawsuit.

The bill, sponsored by New York State Assembly Member Helene Weinstein and New York State Sen. John DeFrancisco, is named after Lavern Wilkinson, a single mother of two from Brooklyn. In 2010, Wilkinson went to Kings County Hospital after experiencing chest pain. Results from an X-ray showed a suspicious mass in her chest, but a radiologist didn’t tell her to inquire any further about her condition. Wilkinson returned to the same hospital two years later and was diagnosed with lung cancer. By the time of her diagnosis, the cancer had spread, but her life could’ve been saved if the cancer had been diagnosed earlier. She eventually died. Wilkinson’s family was distressed to learn that they could not seek justice for Wilkinson’s misdiagnosis because of the statute of limitations which required a suit to be filed in 2010, rather than when they learned of the error in 2012.

New York is one of only six states without a date of discovery law. Idaho, South Dakota, Minnesota, Maine and Arkansas are the other states.

In 2016, organizations, activists and labor unions collaborated on a letter sent to Cuomo urging him and the state Legislature to move forward on Lavern’s Law.

“The Cuomo administration and New York State Legislature have historically stood up for patient safety,” read the letter signed by 40 organizations, including the NAACP New York State Conference, Make the Road New York, Metro New York Health Care for All Campaign and the New York State Nurses Association. “We urge you to continue that support by passing the Date of Discovery Law, also known as ‘Lavern’s Law,’ to close this harmful loophole in New York’s statute of limitations so that the clock starts ticking from the date the patient first learns, or reasonably should know, of the medical error. We believe this simple fix is fair to patients, doctors and hospitals.”

Victory appeared to have come to Lavern’s Law advocates last June when the New York State Legislature passed Lavern’s Law, signaling that a possible change was underway.

“This legislation closes a glaring loophole in the statute of limitations for medical malpractice claims involving cancer and malignant tumors,” said Weinstein after the bill’s passing. “Too often, by the time a patient realizes that there has been medical malpractice, the two-and-a-half-year statute of limitations has already passed and they are denied their day in court, regardless of how egregious the missed diagnosis was.”

In an age of the powers that be appearing to get everything they want, it seemed to be a victory for the figurative little guy. But several key provisions were taken out of the bill for it to pass.

The original construction of Lavern’s Law contained a window allowing the revival of medical malpractice cases under the current law. The passed bill no longer contains this provision. The original bill also applied to all medical malpractice victims. The passed bill doesn’t. The revised Lavern’s Law states that a misdiagnosed cancer victim will have two-and-a-half years from the date of discovery to bring a medical malpractice suit and is barred from suing if more than seven years pass.

New York State Gov. Andrew Cuomo still hasn’t signed the pared down version of the bill and legislative members on both sides of the issue are demanding that he make a move soon. Leaders in the medical and insurance industries have lobbied against Lavern’s Law since 2015, citing the potential payoff of millions in lawsuits that they can’t afford.

In a piece written for the New York Law Journal, Peter Kolbert, the senior vice president of the FOJP Service Corporation, and founding partner Andrew Kaufman of Kaufman Borgeest & Ryan LLP, state that Lavern’s Law should only be signed if other reforms are included in the legislation “to achieve fairness for all parties in medical malpractice cases.”

The FOJP Service Corporation is one of the largest insurers of doctors and hospitals in New York.

In August, the New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus sent a letter to Cuomo—signed by Caucus Chairman and New York State Assemblyman N. Nick Perry—urging the governor to sign the bill, stating that Lavern’s Law “remedies an unjust illogical rule of law.”

“As members of the Black, Puerto Rican, Hispanic & Asian Legislative Caucus, this is a particularly important issue for us,” read the letter. “Research shows that racial bias means that communities of color are disproportionately victimized by substandard medical care. Preventable medical errors are now the third-leading cause of death. All patients need protection from medical negligence. The people this bill will help are members of our communities.”

Cuomo has until the end of the calendar year to sign Lavern’s Law. With less than a month remaining, New York Public Interest Research Group Executive Director Blair Horner told the AmNews it would be unfortunate if pen wasn’t put to paper with this bill.

“He already told the Daily News that he would sign a broader version of the bill,” said Horner. “It would be shocking if he didn’t sign this more narrow version of it.”

Horner continued, “This is important, if you have the misfortune of getting hurt because of a medical mistake, and sadly that’s too frequent. Hundreds of thousands of Americans die each year due to a medical mistake.”

Lavern Wilkinson may be the legislation’s namesake, but she’s representative of thousands of New Yorkers.

In October 2002, 19-year-old Jennifer Estrella went to Montefiore Medical Center’s emergency room in the Bronx because of abdominal pain. After a CT scan, doctors told her she was suffering from ovarian cysts. An OB-GYN advised that Estrella monitor the cysts.

Approximately two-and-a-half years later, the Borough of Manhattan Community College student went back to the same hospital emergency room, complaining of more severe abdominal pain and vomiting. A CT scan and ultrasound were performed, and Estrella was told that she might have an abscess. A surgeon told her that the mass might be cancerous and that she had to have her liver, gallbladder and bile duct removed. When asked if anyone explained to her what was wrong the first time, Estrella told the surgeon “No.” Because of the statute of limitations, her family couldn’t sue and now bears the costs of her care and recovery.

“The worst thing in the world is to get hurt and lose your legal rights because the clock ran out,” said Horner. “I’ve dealt with people who went in for mole removal and found out they have melanoma. If there’s a mistake, you can easily not know it for two-and-a-half years. Anyone who doesn’t have continuous care can be out of luck, and it’s not your fault.”

Horner added, “The current situation is fundamentally unfair, and this bill fixes that to a large extent.”