January 30, 2018

Assembly Passes Legislation to Provide Legal Remedy For Medical Malpractice For Negligent Failure to Diagnose Cancer

Assembly Speaker Carl Heastie and Ways and Means Chair Helene Weinstein today announced that the Assembly has passed legislation to amend the law regarding medical malpractice claims for negligent failed cancer diagnoses. The bill, often referred to as "Lavern's Law," would adjust the date when the statute of limitations clock begins from the actual date of malpractice, to the date that a patient learns, or should have learned, they have experienced medical negligence regarding a cancer diagnosis.

"When it comes to treating life-threatening illnesses, we know that time is of the essence," said Speaker Heastie. "Under this legislation, individuals who have suffered the consequences of a missed diagnosis will be given the opportunity to seek justice."

"Without this legislation, cancer patients are at continued risk of having their rights expire before they even discover malpractice," said Assemblymember Weinstein. "Current law has for too long denied individuals their day in court and fails to hold medical professionals responsible for their mistakes, which can have life-and-death consequences for their patients."

Under current law, the statute of limitations begins when the malpractice occurred and ends two and a 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, or should have discovered, the malpractice (A.9633, Weinstein). The patient would then have two and a half years to pursue a malpractice action, though not to exceed seven years after the date of malpractice.

Missed diagnoses sometimes go unnoticed when patients do not experience any symptoms following malpractice. This bill would offer a legal remedy for an individual who has suffered as a result of such malpractice and potentially offer an incentive for health care providers to provide more thorough care.