New York Politicians Fail to Act on Critical Malpractice Bill

Earlier this year, we told you about Lavern Wilkinson, a New York City woman on the verge of death from cancer that doctors failed to take note of for two years, despite adequate scans. As a doctor involved in the case put it succinctly in a report quoted in the Daily News: “… apparently nobody saw the report.”

That mistake has cost Wilkinson her life. She died in March at age 41, leaving behind a 15-year-old daughter who is autistic. She was never able to sue Kings County Hospital for failing to inform her that a scan revealed a nodule in her lung because of New York’s archaic statute of limitations on these cases.

Medical malpractice lawsuits are one of the most effective tools we have to send a message that medical errors like these should not happen.

If New York state senators had acted on “Lavern’s Law” before breaking for the summer, people like Wilkinson would be allowed to pursue a case in court. Senate leader Dean Skelos, a Long Island Republican, declined to bring it to the floor for a vote.

Statute of Limitations

Wilkinson went to Kings County Hospital in February 2010 complaining of sudden chest pain. An X-ray was performed, but her attending doctor never saw a report from the radiologist who examined the scan and found a two-centimeter nodule in her lung. Wilkinson was told she was fine, sent home and told to take over-the-counter pain medication.

Doctors never saw the radiologist’s report until Wilkinson came back two years later with breathing difficulties and doctors finally realized their error. By then, it was too late. While the cancer had been likely curable two years prior, too much time had passed by the time the mistake was discovered.

Too much time had also passed for Wilkinson to file a medical malpractice lawsuit against the hospital. Under current New York law, medical malpractice lawsuits must be filed within 15 months of the malpractice if it occurred in a public hospital.

Of course, Wilkinson had no idea a deadly cancer was growing inside of her during those 15 months. Why? Because a hospital doctor had told her she was fine.

“Lavern’s Law”

capitolAll states have laws establishing a time frame in which a medical malpractice lawsuit can be filed, but they typically start the clock running only when the malpractice is discovered, or should have been discovered, by the patient. If this were the case in New York, Wilkinson would have been alive at least long enough to see her day in court.

A law before the state Legislature would make just that change. It is being called Lavern’s Law. Like other laws given the names of real people, it is named after a victim whose case the law hopes to prevent from happening in the future.

But the bill never came to a vote in the state Senate this term. While this important bill went unaddressed, state lawmakers did manage to pass a bill banning the sale of shark fins in the state – a non-epidemic if there ever was one.

Wilkinson’s former attorney told the Daily News lawmakers did not have the backbone to pass Lavern’s Law.

Contact Us

The attorneys at Oshman & Mirisola, LLP are committed to doing the best we can to right the wrongs committed against victims of medical malpractice in New York and New Jersey. Contact us for a free consultation with an attorney if you or someone you love has been the victim of malpractice.

Ted Oshman

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Ted Oshman has been with Oshman & Mirisola since 1988 serving clients for over 25 years. Learn more about Ted's background and featured practice areas here.

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