New York’s Unfair Medical Malpractice Statute

Under New York State’s medical malpractice statute of limitations, if you have been injured due to the negligence or “departure from good and accepted medical practice” of a physician, hospital or other medical provider in New York, in general, you must commence a lawsuit against that negligent provider within 2 and one half years of the date of your last treatment with that provider. The statute is more onerous if the defendant is a public entity such as a county run hospital. If the negligent party is a public entity, then a notice of claim must be filed within a scant 90 days of the negligence and a lawsuit filed within one year and 90 days of the doctor or hospital’s actions that caused your injuries.

New York’s stringent statute of limitations has led to tremendously unfair results when the victim of the malpractice is unaware of the malpractice until it was too late to start a lawsuit against the medical provider that caused the injuries. This is precisely the case of Lavern Wilkinson, a 41 year old mother of a severely disabled, autistic 15 year old daughter who is unable to speak. On February 2, 2010, Ms. Wilkinson was seen at the Kings County Hospital in Brooklyn for a chronic cough. The emergency room doctors ordered chest x-rays and EKG. Ms. Wilkinson was informed that all results were normal and instructed to take Motrin. Unfortunately, the doctors failed to review the x-rays carefully, which showed a 2 centimeter nodule on her lung, which was likely curable at the time.

Fast forward to May of 2012, now well over two years since the date that Ms. Wilkinson could have, and should have, been informed of the nodule and the need for further treatment. Ms. Wilkinson was having difficulty breathing and returned to Kings County Hospital. A doctor reviewed the chest x-rays from over two years earlier, discovered the nodule, and gave Ms. Wilkinson devastating news: The nodule had developed into Stage 4 lung cancer, had spread to both lungs and three other organs, and was inoperable.

Ms. Wilkinson consulted with medical malpractice attorneys, and was given additional terrible news. Because Kings County Hospital is a county run facility, she could not have a successful lawsuit against Kings County, because she did not file a notice of claim within 90 days of February 2, 2010 and did not start a lawsuit within a year and 90 days of that date, when doctors should have informed her of the 2 cm. nodule and recommended follow up and treatment. The statute of limitations had expired long before Ms Wilkinson was given her grim diagnosis and she had no legal recourse. The obvious question is: how could she possibly know to file a case when no one ever informed her that she had a life threatening condition which needed to be addressed?

In 44 other states in the country, there is a “date of discovery” statute, permitting the injured person or the family of the deceased victim in fatal cases to commence the lawsuit when they “knew or should have known” of the malpractice. Had that statute been in place in New York, (which many trial attorneys in this state have been attempting to convince the legislature to adopt for several years) Ms. Wilkinson would have legal recourse and could obtain proper compensation for her not only her damages, but a fund to provide for the long term medical needs of her daughter, which is estimated to be approximately 150,000 per year.

Apparently because of the potential of major negative publicity as the result of a Daily News article in January, the hospital’s attorneys offered $625,000 to settle the case, despite their knowledge that if the case was pursued in Court, they would win on a statute of limitations defense. Ms. Wilkinson had no real choice but to accept the offer and will end up with $425,000, obviously a woefully inadequate amount both for her undiagnosed malignant cancer and for the long term care of her daughter. The case was probably worth several times the amount that it settled for, but the unfair New York State statute of limitations just left another victim in its wake. The New York State Legislature should at long last address this unfairness and join those other 44 states in adopting a date of discovery statute.

Contact The Westchester County Personal Injury Lawyers at the Law Office of Mark A. Siesel online or toll free at 888-761-7633 if you or a family member are the victim of medical malpractice, are injured in a car crash or truck accident, or suffer injuries in a construction accident, for a free consultation to discuss your case in detail.