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Medical Malpractice Update - March 2018

Posted by Giovanna A. D'Orazio | Mar 12, 2018

The law is always changing and likes to keep us on our toes.  Today we're taking a look at a couple of significant updates in the world of medical malpractice.  For more on this practice area, visit our medical malpractice and hospital negligence page

Continuous Treatment Doctrine – Court of Appeals Refuses to Adopt Rule that Tolling Doesn't Apply to 2 ½-year Gap in Treatment

The statute of limitations in a medical malpractice lawsuit is 2 ½ years, running from the date of the malpractice or error underlying the suit (with some exceptions, one of which is discussed below).  In some situations, where a patient continues to see the same doctor for follow up treatment after the date of the error, the statute of limitations is tolled (meaning it doesn't start running) until the date of the last appointment with that doctor.  This is referred to as the “continuous treatment doctrine”.

In February 2018, the Court of Appeals – New York's highest state court – was asked to consider whether a 30-month gap in treatment would render the continuous treatment inapplicable, so that any errors prior to the gap would be untimely.  The argument by the defendant was that there should be a bright line rule where a gap in treatment that exceeds the 2 ½-year statute of limitations bars application of the continuous treatment doctrine.

The Court – in a win for plaintiffs – declined to adopt this bright line rule.  Instead, it applied the preexisting case law on the continuous treatment doctrine to find that, under the circumstances of this case, there were issues of fact with respect to whether the patient – despite the gap in treatment – still continued to be under the doctor's care.  The case is Lohnas v. Luzi, and can be read here.

Our firm recently handled a failure to diagnose cancer case where there was a 21-month gap between one of the errors we alleged was made and our client's return to the same doctor.  The defendant made a motion for summary judgment – a motion to dismiss a case prior to trial – arguing that any claims based on the error preceding the gap in treatment were untimely.  We successfully argued that the continuous treatment doctrine applied and that there were issues of fact with respect to whether our client had returned to the same doctor in a timely manner.  Following the decision in our favor, this case settled in the high six-figures.  (*Prior results do not guarantee similar outcomes).

Lavern's Law

Lavern's Law went into effect earlier this year.  The law provides that the statute of limitations on a failure to diagnose cancer case does not begin to run until the patient learns of the malpractice.  That means that, if this law had been in effect prior to the case we mentioned above, we wouldn't have had to establish the application of the continuous treatment doctrine because the statute of limitations wouldn't have started to run at the time of error preceding the gap.  It would have started to run when our client discovered that the doctor failed to diagnose his cancer.  This law corrects a major unfairness because, given the nature of cancer, patients often did not know they even had cancer until the statute of limitations on the error had already run out. 

The law is named after Lavern Wilkinson who died of lung cancer in 2013 after doctors failed to inform her that a 2010 chest x-ray revealed a mass on her lung.  This case reflects the unfairness: by the time Ms. Wilkinson learned of her cancer in 2013, the 2 ½ year statute of limitations running from the 2010 error had already expired.  Not only was it tragically too late for Ms. Wilkinson to be treated successfully, but her family could not pursue a lawsuit against the doctors and medical facility responsible for the error.

If you believe you have been the victim of medical malpractice, contact us.  We are happy to see if we can help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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