January 19th, 2018

Lavern’s Law Will Save New Yorker’s Money (Updated!!!)

Lavern Wilkinson, who lost her chance for justice before she even knew she had that chance.

Dear Gov. Cuomo:

A couple of weeks ago I wrote a piece about why you should sign Lavern’s Law, which has been sitting on your desk for weeks now as the only bill out of 600+ that you’ve failed to act on from last year’s legislative session.

But in my list of reasons to sign a bill that starts the statute of limitations in failure-to-diagnose-cancer cases from the date the malpractice is discovered (as opposed to when the malpractice happens) I neglected to mention one thing.

Lavern’s Law will save taxpayer funds. As it stands now, if someone loses the right to sue before they ever even knew that malpractice occurred, there’s a pretty good chance that Medicaid will pay out much of the medical expenses. And those kinds of expenses can add up.

But if suit is permitted then much of the money can be recovered from the people actually responsible for the unnecessarily diminished health of the patient. Medicaid often recoups money paid out from such lawsuits.

And the best part, from Medicaid’s perspective, is that a private attorney is doing all the work. There is virtually no cost to the state other than contacting us every so often to find out the status of the suit, and settling up if the recovery is partial.

So the question is — aside from the moral and public policy issues I already addressed — who should bear responsibility for the medical costs of malpractice? The party that was negligent? Or the taxpayers?

There are reasons this bill enjoyed wide support from both Democrats and Republicans and why similar laws exist in 44 states. Yes, that’s right, even deep red states have such laws.

But not New York.
———-

Updated (1/30/18)! Gov. Cuomo has agreed to sign Lavern’s Law and it will happen today!

As with many laws, there is an issue of, “When does this become effective?” The very powerful health care lobby was concurred that malpractice from 5 years ago — if it hadn’t been discovered until after the statute of limitations had expired — would now become actionable.

The bill was, therefore, tinkered with a bit for past acts of malpractice, so that it would no longer allow patients to revive already-expired claims that occurred up to seven years prior. Instead, a patient could file for a cancer claim that expired within the last 10 months and file the claim for an additional six months.

But on the whole, a big victory for civil justice. The Daily News, which has long championed this legislation, has an editorial celebrating the event, writing:

It took too long — indeed, far longer than the time stingily allotted Lavern — but first the Assembly, then the Senate had the wisdom to open New York’s lawsuit window despite opposition from the hospital lobby.

The version of the legislation to earn Cuomo’s signature will include adjustments to be passed this week at the governor’s insistence. Albany being Albany, the bill that passed both houses of the state’s Legislature wasn’t good enough for the governor, so Cuomo brokered a deal with legislative leaders to force through amendments.

Oddly, the law will only cover malpractice related to cancer. Why? Malpractice comes in all forms. Fix that, stat.

It’s also a shame that Cuomo doesn’t dare open the door to past patients, beyond 10 months ago.

Still, take comfort that Lavern smiles down on all who trust their lives to medical professionals sometimes fatally imperfect. Her law and legacy demand they do better.

January 2nd, 2018

Will Gov. Cuomo Sign Lavern’s Law?

Yes, a real case. Yes, the x-ray hangs in my office.

There is one bill on Gov. Andrew Cuomo’s desk from last year. Just. One. Bill.

There were 606 bills that passed by both of New York’s legislative houses. All have been signed, or vetoed.

Except for Lavern’s Law. A law that Cuomo previously stated that he supported and would sign.

It was finally sent to the Governor during the holiday week for signature. He has 30 days to sign it.

As I bang on this keyboard, it sits on his desk.

Lavern’s Law, for those that don’t know, mimics the law in 44 other states, extending the statute of limitations in certain medical malpractice cases from the time the discovery of malpractice was made, or could reasonably have been made, instead of when it occurred

In the final hours dickering over the bill last June, it was watered down to apply only to cancer cases, leaving all other “failure to diagnose” cases, where the patient didn’t even know s/he was victimized, hanging out in the cold.

But still, even in its watered down state, it is something for those that have not only been victimized by malpractice, but didn’t even find out until the time to bring suit had expired.

As I previously described it:

The law is named for Lavern Wilkinson, who went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the x-ray. But Wilkinson wasn’t told.

When it was found again two years later when her complaints worsened, the 15-month statute of limitations had expired. As per the Daily News summary of the incident:

A chest X-ray found the cancer had spread to both lungs, her liver, brain and spine. The disease was now terminal.

She left behind family including an autistic daughter.

Lavern Wilkinson, who lost her chance for justice before she even knew she had that chance.

The bill passed the Assembly. Then it passed the Senate 56-6, that being the tougher of the two houses.

Why hasn’t the bill been signed?

It can’t be due to insurance premiums because, after all, the state’s largest insurer is being sold to Warren Buffet because it’s so damn profitable.

And at just 2 ½ years for suits against non-governmental medical facilities, we already have one of the shortest statutes of limitations in the country (and 15 months against governmental facilities) since we have no date of discovery statute.

And with some of the lowest legal fees for attorneys, the medical community has already been granted widespread de facto immunity for most acts of malpractice — since taking smaller suits simply isn’t financially economical.

And it can’t be because of a lack of caps on malpractice cases, because we not only have them, but have had them for over 200 years.

New York has become, with some of the best medical care in the world, one of the absolute worst places with respect to finding justice when that care goes wrong.

And all this happens despite medical liability insurance premiums and premiums continuing to plummet, and the costs of insurance as a percentage of healthcare costs likewise continuing to drop. From a Public Citizen study in 2017 (The Medical Malpractice Scapegoat), look at these three charts:

Under what justification does a state close the courthouse doors on its citizens before they even knew they were injured?

Under what logic do we grant further immunity to those that commit preventable harms?

For what public policy reason do we continue to withhold justice?

This bill enjoys widespread support among voters, as demonstrated by the overwhelming vote in the Senate.

It is long past time that New York get a date of discovery law. There are no reasons not to do it.

Gov. Cuomo, please sign that bill.

See also (1/19/18): Lavern’s Law will also save New Yorkers money

June 21st, 2017

NY Senate Passes “Lavern’s Law” — A Date of Discovery Law for Cancer Cases (Updated!)

A month ago I posted about New York’s need to pass “Lavern’s Law,” which extends the statute of limitations in medical malpractice cases from the time the discovery of malpractice was made, or could reasonably have been made.

The problem, as I noted back then, was that some folks lost their rights due to our short statute of limitations — 2 ½ years for most cases and a mere 15 months against a municipality — before they even knew they had an undiagnosed cancer or other condition.

The Assembly had, in prior years, passed the bill. The obstruction was in the Senate.

A couple hours ago, though, the Senate passed the bill. Or at least a version of the bill.

While the original version related to discovering malpractice in general, the Senate version is restricted to undiagnosed cancers and other malignant tumors.

This is a victory for consumers no doubt, in that some of them won’t have the courthouse doors slammed in their faces before even being aware they had any rights to begin with.

The law is named for Lavern Wilkinson, who went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the x-ray. But Wilkinson wasn’t told.

When it was found again two years later when her complaints worsened, the 15-month statute of limitations had expired. As per the Daily News summary of the incident:

A chest X-ray found the cancer had spread to both lungs, her liver, brain and spine. The disease was now terminal.

She left behind family including an autistic daughter.

The bill had bipartisan support, and passed the Senate by a vote of 55 to 6.

Reconciliation with the Assembly is next, and assuming that happens, on to the Governor for signature.

The extension of the statute of limitations is not forever, of course. It starts to run from the date of discovery, and the time to start suit will end seven years later, even if the cancer is not discovered.

This is all very good for New York’s residents. Should they fall victim to malpractice, they have to worry less about being victimized a second time by an unjust civil justice system.

Updated: The Assembly has now passed the same bill. It goes to the Governor for signature. He had previously been a supporter of the law.

May 17th, 2017

It’s Time to Pass Lavern’s Law (Updated)

There is little that can be more infuriating on the civil side of the law than people losing their rights before they even knew you had them.

But such is the state of the law in New York, where the statute of limitations in medical malpractice matters is calculated from the time the incident occurs — not from the time the person found out about the conduct.

‘Scuse me while I put on my advocacy hat for a moment. This won’t take long.

New York is in a deep minority of just six states that measures the time to sue from the date of the malpractice, and this hits people particularly hard if they have undiagnosed cancers.

Lavern Wilkinson, for whom the law is named, went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the x-ray. But Wilkinson wasn’t told.

When it was found again two years later when her complaints worsened, the 15-month statute of limitations — you read that right, people sometimes have a paltry 15 months to discover the malpractice, hire a lawyer and bring suit — had expired. As per the Daily News summary of the incident:

A chest X-ray found the cancer had spread to both lungs, her liver, brain and spine. The disease was now terminal.

She left behind family including an autistic daughter.

That 15-month statute of limitations, by the way, is for city hospitals. For others, it is 2 ½ years.

But you know what? The problem still exists. Think about this: Pap smears are done every 3 years. A misread abnormal Pap that isn’t picked up until the next one? So sorry, you’re out of luck.

The curious thing about this bill, currently pending before the New York legislature, is that it enjoys wide bi-partisan support. There is no conceivable reason why the substantial burdens of medical negligence should fall to the patient and the patient’s family. None. Zero. Nada.

And you know what else? If the hospital was private, and continues to get immunity for its conduct, it is you the taxpayer that picks up part of those costs. You. Not the hospital that was negligent.

But the bill has never been brought to the floor for a vote.

Want to do something constructive today? Contact your New York Senator or Assemblyperson and let them know that this bill should be brought to the floor for a vote.

In the Assembly, the bill is A. 3339. (Updated: The bill was reported from the Assembly Codes Committee to the floor.)

In the Senate, the bill S. 4080. (Updated: The bill is stalled in the Senate — so if you make one call, it should go to your Senator.)

And yeah, the next victim could be you. Or me. And we may not even know it.

Updated: A June 5, 2017 editorial from the NY Daily News: Legislative malpractice: Doing right by Lavern Wilkinson:

…At last count, there were 39 sponsors in the 63-member Senate, which has passed the state Assembly and would easily do so again…

The Democratic-led Assembly passed Lavern’s Law and is poised to do so again this year. Gov. Cuomo pledges his signature. But in the GOP Senate, with the bill opposed by the well-heeled Greater New York Hospital Association, [John] Flanagan has made it a dead letter, never letting it get to the floor.

The bill is carried by Republican John DeFrancisco, the Senate’s No. 2. He can — and should — file a motion for full chamber consideration, which under Senate rules requires the support of “three-fifths of members elected.” That’s 38 senators. This bill has, we repeat, 39 sponsors.