June 21, 2017

Assembly Passes Legislation to Fix Loophole in Medical Malpractice Claims for Negligent Failure to Diagnose Cancer

Assembly Speaker Carl Heastie and Judiciary Chair Helene E. Weinstein today announced the Assembly has passed a bill, often known as "Lavern's Law," that would adjust the date when the statute of limitations clock begins from the actual date of the malpractice, to the date that a patient learns that they have experienced medical negligence regarding a cancer diagnosis.

"A failure to diagnose cancer in a timely fashion can have life-threatening consequences," said Heastie. "This legislation recognizes the seriousness of such an oversight and offers an opportunity for justice not possible under current law for an individual who has suffered due to this type of malpractice."

"This legislation closes a glaring loophole in the statute of limitations for medical malpractice claims involving cancer and malignant tumors," said Weinstein. "Too often, by the time a patient realizes that there has been medical malpractice, the two and half year statute of limitations has already passed and they are denied their day in court, regardless of how egregious the missed diagnosis was."

Under current law, the statute of limitations begins when the malpractice occurred and ends two and half years after the date of malpractice. Under the bill, the statute of limitations for medical, dental or podiatric malpractice for actions involving a failure to diagnose cancer or a malignant tumor would not begin until the patient discovers the malpractice (A.8516, Weinstein). The patient would then have two and half years to pursue malpractice action, though not to exceed seven years after the date of malpractice.

For some patients, a missed diagnosis may go unnoticed because the individual may not have symptoms following the malpractice. The legislation will offer legal remedy for individuals who have suffered from medical misconduct and potentially provide an extra incentive for health care providers to be more thorough in the care they provide.