Update on Lavern’s Law and the misdiagnosis loophole in New York

Although Lavern’s Law did not pass in 2013, it was reintroduced again during this summer’s legislative session. Lawmakers on both sides worked to get it passed.

The difficulty with malpractice lawsuits stemming from a misdiagnosis is that by the time many victims realize they were misdiagnosed, the statute of limitations has passed. This is especially of concern in the state of New York. Unlike many other states throughout the country, New York is one of only five that start running the clock at the time of the medical malpractice, not the actual discovery of misdiagnosis.

This was the case for a New York woman named Lavern Wilkinson. In 2010 she was first misdiagnosed as having asthma rather than lung cancer. It was not until two years later in 2012 that she was finally properly diagnosed and even aware of the misdiagnosis. However, due to New York's medical negligence laws, she was not able to file a lawsuit because of the misdiagnosis loophole. As mentioned in a previous article, victims like Lavern and their families pushed New York state legislators to pass a bill (dubbed "Lavern's Law") in 2013 that would fix this loophole. Lavern's Law did not pass unfortunately in 2013, and since then Lavern died as a result of her illness.

Reintroduction of the bill in 2015

Despite the bill dying in 2013, Lavern's Law received new life as it was reintroduced to the state Assembly in 2015. By early June, more than thirty-two state senators had signed the bill in stark contrast to just three when it was first introduced. In addition, thirty members of the state Assembly co-authored a "date of discovery" revision. Essentially, the fifteen month statute of limitations would start running on the date a patient discovered the misdiagnosis.

There was much support from both sides of the aisle in breathing new life into this bill over what had been a long-standing and contentious issue for New York state legislators. On June 10, 2015, Lavern's Law was passed by the state Assembly for the first time. This time it was not close as there was overwhelming support from both parties. The final vote came down to twenty-three opposing and ninety-nine in favor of the bill.

Yet another disappointing end to Lavern's Law

The fate of Lavern's law came down to the New York State Senate. Governor Andrew Cuomo gave his full support and announced his willingness to sign the bill into legislation if it passed through the Senate. However, this became too big a hurdle for Lavern's Law as the focus started to shift in the Senate to school and rent control issues. On June 25, 2015, the bill died yet again. The final decision came down to one lawmaker, Senate GOP Majority Leader John Flanagan, who did not allow the bill to come to the floor for a vote. This does not mean the end of the road for Lavern's law as it could possibly be brought up again in the next legislative session.

Misdiagnosis cases are complicated and having the experienced counsel of a medical malpractice lawyer can help. Reach out to an attorney in New York for more information about how he or she can help you with your potential lawsuit.