Lavern’s Law to Right a Wrong in New York’s Medical Malpractice System

Lavern Wilkinson was a 42-year-old Brooklyn mom who died in 2013 of a curable form of lung cancer after an ER doctor at Kings County Hospital said her EKG and chest x-rays were normal and told to take Motrin for pain. The chest X-ray, in fact, showed a suspicious, 2-centimeter nodule in Wilkinson’s right lung. The radiologist had recommended in his written report that Wilkinson have a follow-up X-ray in three months, and if “clinical concern warrants, a CT scan is suggested.” Lavern was never given this information. For the next two years, her chronic cough and breathing difficulties were attributed to asthma. Despite repeat visits to Kings County Hospital clinics, no doctor ever mentioned that the 2010 chest X-ray showed a suspicious mass. It wasn’t until Lavern went back to the hospital emergency room in May 2012, complaining of wheezing and shortness of breath that she not only learned she had stage-4 lung cancer, but that the 2010 x-ray had shown the nodule at which time the disease would have been curable. Wilkerson was given six months to live.

To add insult to injury, Wilkerson was barred from suing the hospital due to a legal loophole that requires claims of medical malpractice against public hospitals be filed within 15 months after they occur — instead of when the patient actually discovers any wrongdoing. It was only after the Daily News exposed her tragic story did the city award Lavern $625,000. Legal experts estimated the case would have netted $8 – $10 million had it not been for the statute of limitations, enough to cover round-the-clock care for severely autistic teen daughter. The cost for taking care of someone like Lavern’s daughter can be as much as $150,000 a year. The money will probably be gone before the teen turns 20.

There are similar stories throughout the state. A 22-year-old Bronx woman said she was not told about a mass on her liver in 2012 even though the radiologist had alerted the doctors of it after a CT scan. The woman said she didn’t find out until she went back to the hospital in February with stomach pain and was told the mass had grown. Another woman died of breast cancer in 2008 as a result of a misdiagnosis in 2005. How does a person know to file a lawsuit if they don’t know an error occurred until after it’s too late? With slower moving cancers, it can take years before a person knows a fatal mistake has occurred.

Malpractice victims should not lose their rights to bring a lawsuit before they are even aware that they have cancer, but this is New York law. New York is one of only six states that does not have a “date of discovery” statute. Patient advocates say that’s unfair because often times a mistake is unknown until the patient becomes very ill or dies, especially in cancer cases. Without a ‘date of discovery” statute, medical professionals cannot be held accountable for medical errors.

Lavern’s Law proposes to start the statute of limitations from the time a patient discovers the malpractice rather than from the time the medical malpractice occurs. Despite immense backing from the general public and medical malpractice attorneys, the bill failed to come to a vote in the Assembly or the Senate in the 2013 session. Now, two years after Lavern’s death, Governor Andrew Cuomo is supporting the bill that would strengthen the rights of victims of medical malpractice to hold hospitals accountable in court. The Assembly passed the statute for the first time on June 10; Cuomo has promised to sign it if it reaches his desk. Although the bill also has strong support from key Senate Republicans, one man is standing in the way – John Flanagan, leader of the state Senate’s Republican majority, who has not said whether he’ll allow Lavern’s Law to be brought to a vote. After years of fighting on behalf of Ms. Wilkerson and other victims like her, this one man has the power to strip innocent victims of their rights to just compensation. Why? I’ll let you decide.

Flanagan also has strong ties to the deep-pocketed medical community. According to the New York Daily News, the Greater New York Hospital Association, the Healthcare Association of New York State, and the state Medical Society that represent doctors have poured $1.6 million since 2010 into the coffers of the Senate Republican Campaign Committee. They also contributed directly to Flanagan’s campaign account.

I have often written that each of us is just one event from being a seriously injured or losing a loved one, and, if victimized, a person will, almost instantly change an “anti-justice” view into a “pro-justice” view. Maybe Senator Flanagan would see the grave injustice if he or a family member became stricken with cancer that was missed by a doctor more than 2 1/2 years before the diagnosis was made. I hope he never does; I hope he realizes that although it may be too late for Lavern Wilkerson, it is not too late for other New Yorkers. I hope he brings the statute to the Senate floor for a vote.

Until lawmakers make a change in New York medical malpractice laws, victims of hospital or doctor negligence need to be vigilant about their own health, and seek legal representation quickly if they believe a mistake has been made.

Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.