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What is "Lavern's Law" and why is it important?

Posted by Scott M. Peterson | Feb 01, 2018

Following passage in the New York State Senate and Assembly, New York Governor Andrew Cuomo signed Lavern's Law into law.  This new law extends the time period for victims of late cancer diagnoses to bring claims, adding, in effect, a "discovery" rule. 

The law before. 

It used to be, in New York State, that if you discovered your doctor missed a cancer diagnosis you would only have 2 1/2 years from the date of the missed diagnosis to pursue a claim for medical malpractice.  

2 1/2 years may seem like a long time, but we can assure you, it is not.

In fact, in many cases involving delayed cancer diagnoses, the patient does not even realize that the diagnosis was missed until months or even years later.  The problem, of course, is that in many cases cancer is a slow growing disease (unlike, say, a stroke), and when a misdiagnosis occurs this allows the condition to slowly grow without the patient having any idea (or receiving necessary treatment).  Given the statistics and education surrounding early detection, a delayed diagnosis can often be a death sentence. 

An example

We previously represented a young man from Saratoga County who had been treating with his orthopedic physician for a small but painful lump on his knee.  The doctor initially had an MRI performed, which he believed ruled out a malignancy.  Believing that everything was fine, our client went about his life.

When the young came back in complaining about discomfort, the physician ordered an ultrasound guided aspiration of the mass.  Because of the anatomy of the knee, the aspiration could not be completed (it was too painful).  Thus, a malignancy was never actually ruled out.  The physician made a note to follow up with an MRI, but this was never communicated to the patient, and thus it did not happen.  Once again, believing everything was fine, our client went about his life.

Fast forward two years, and the young man noticed that the lump had grown significantly.  He went back to the physician, who, this time, ordered the MRI and immediately discovered that the lump was not benign, but was a synovial sarcoma - a rare but deadly cancer.  Surgery was performed to attempt to remove the cancer, but ultimately it spread.  Our client passed away.  

The defense in in that case tried to argue that the 2 1/2 year statute of limitations had run on any claims relating to the first MRI that the doctor had ordered.  While we were fortunately able to beat that argument in court (relying on a legal theory known as the "continuous treatment doctrine"), under the law at the time the defense had a strong argument. 

We ultimately resolved the case successfully for our client's family, but we saw first hand how those with legitimate claims of missed cancer diagnoses could be left out in the cold through no fault of their own, simply because they relied upon what their physician told them - that their lump/mass/cyst was benign.

The law after passage of Lavern's Law

Lavern's law has changed that.  Now, patients will have 2 1/2 years from the date that they discover the missed diagnosis, up to seven years from the date of the last treatment.  This is a very big deal for patients (and their families) who have learned of a missed diagnosis only years after it occurred, and will allow them to pursue claims for the delayed diagnosis which may have previously been barred.

The law also allows a ten month look back period - in other words anyone with claims that became time barred during the last ten months prior to the enactment of the law can now bring those claims within the next six months.  This means that if you have a potential claim it is critical that you act now.

Learning that you had a delayed cancer diagnosis can be one of the most devastating conversations of your life.  We cannot change the diagnosis, but we can make every effort to help protect you and your family by holding those accountable who made the mistake.  We feel strongly that doing so will also help improve the care that other patients receive.  

If you have questions about a delayed cancer diagnosis, contact us today.

About the Author

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on helping people protect their families.

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