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