Will the Statute of Limitations on Medical Malpractice Actions in New York Be Extended?

For decades, section 214-a of the New York Civil Practice Law & Rules set forth the statute of limitations for medical malpractice actions. Under current law, the statute of limitations for a medical malpractice action expires two and half years after the date of the alleged malpractice. New York is one of only a handful of states without a date of discovery law regarding medical malpractice actions. A date of discovery law tolls the statute of limitations for a medical malpractice claim until the injury should have been discovered. However, this may be changing, at least for New York cancer patients.

Last week, proposed legislation to adopt a discovery rule passed in the New York Senate and is on its way to Governor Cuomo. Under the legislation, the statute of limitations would be amended to the later of two and a half years from either of the following: (1) when one should have reasonably known of the alleged negligent failure to diagnose a malignant tumor or cancer, whether by act or omission, and that such negligent act or omission caused the injury; or (2) the date of the last treatment where there is continuous treatment for the same illness, injury or condition. However, this extension is not open-ended, as such an action must be commenced no later than seven years from the alleged act of negligence or from the last continuous treatment for the same illness, injury or condition.

What passed in the New York State Senate is a version of a legislative bill known as “Laverne’s Law.” The bill is named for Laverne Wilkinson, who allegedly went to a hospital in New York in 2010 with chest pain and underwent an x-ray. The radiologist allegedly saw a suspicious mass on the x-ray, but Ms. Wilkerson was allegedly never told the results of the diagnostic test. Years later, when her complaints worsened, the statute of limitations for medical malpractice had expired.

The passing of the legislation by the New York Senate has pitted two powerful lobbying groups in Albany against each other. A professional group of personal injury attorneys who have significant power in Albany supports the legislation because it would allow more time to commence potential malpractice actions. However, the legislation is staunchly opposed by the Greater New York Hospital Association, which in 2016 was one of the largest campaign donors, and the Medical Society of New York, which is a professional association of physicians. The hospital group and physician group fear that the amendment to the statute of limitation rule for medical malpractice actions will significantly increase malpractice insurance premiums for New York doctors and hospitals who already pay some of the highest rates in the country. They also argue that enactment of the legislation as written may extend to more cases that those involving cancer patients. In addition, opponents argue that many of the states that have date of discovery rules for medical malpractice also have statutory caps or limits on pain and suffering awards and limits on total damages in medical malpractice lawsuits. New York currently has no statutory caps or limits.

At this point, the health science industry and personal injury attorneys and their clients anxiously await Governor Cuomo’s review of the bill. If it is enacted, the law will have a significant impact on health science litigation in the future and lobby groups for physicians and hospitals will likely seek to pass legislation that provides for statutory caps and limits on total damages in medical malpractice lawsuits.

Tags: , , ,

0 Comments

Be the first to leave a reply!

Leave a Comment