Ask the Judge – Question #6

Steve Pigeon

Judge Bayger

Ask the Judge – Question #6

 

Dear Judge Bayger:

What is “Lavern’s Law” and would it help or hurt injured persons in New York?

Signed, L.W. in Niagara Falls

 

Answer:   Thank you for the question.  “Lavern’s Law” is, or was, a bill pending before the New York State Legislature that would change the statute of limitations in medical malpractice cases.  It would be most helpful for cancer patients because it would extend the time to bring lawsuits against physicians and hospitals.

A little background may be helpful.  Currently under New York law, the time to bring a lawsuit for medical malpractice commences at the time of misdiagnosis or when the malpractice allegedly occurred.  At that point, you would have two and a half years (30 months) to bring the case against a private doctor or non-profit hospital.  If it were against a public hospital, the time is a year and a half, 15 months.

Given the nature of certain slow-moving cancers, a misdiagnosis could develop into a major problem or life-threatening (or ending) condition, which could be treated or prevented with timely medical intervention.  As such, timing is very important.

Lavern’s Law would change the operative date from the date of the alleged malpractice to the date of discovery of the injurious condition.  In the United States, 44 states use this as the standard; only 6 states, including New York, do not.

Unfortunately, this year, the New York Legislature did not pass Lavern’s Law.  In 2015, the Assembly passed the measure, but the Senate did not.  The Assembly did nothing in 2016, and waited to see what the Senate would do.  It is likely that the medical lobby influenced the Senate, which could not reach a consensus on the issue.  The session ended without a bill.

The failure to pass this legislation is a boon to the medical community, who can escape responsibility from their mistakes by allowing the clock to run out.  It effectively denies patient’s their day in court and forces them to second guess their doctors to ensure their diagnosis is correct.  The Legislature, particularly the State Senate, has put the needs of the medical community ahead of the people they represent.  Many observers have called this putting profits before patients; I call it a shame.

(Retired State Supreme Court Justice Frank R. Bayger is inviting you to submit legal questions pertaining to personal injury or wrongful death cases to him for a published response.  Email your questions to Judge Bayger, a Hall of Fame trial lawyer, and the judge will respond in writing in the Niagara Falls Reporter.  Send your email to frankrbayger@gmail.com.)

 

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