Lavern’s Law Could Impact Other States

Lavern Wilkinson, a 38 year-old mother of a severely autistic 15 year-old daughter went to the King’s County Hospital emergency room in February of 2010.  She was experiencing chest pain and the first year resident assigned to her case sent her for chest X-rays.  The resident then reported the results of those X-rays as normal.  She was sent home with Motrin for the supposed muscle spasms that were causing her pain.

But, the X-ray results were not normal. They showed a suspicious mass in the right lung that should have resulted in additional testing since it was cancerous. Over the following two years, Wilkinson returned to King's County Hospital several times due to continual cough and breathing problems. Doctors diagnosed her with asthma. More than two years after that first X-ray, in May 2012, doctors finally noticed that she had cancer. By this time, the cancer was untreatable and had spread to her spine, liver, and brain. She died May 7, 2013.

Currently in New York, a malpractice lawsuit must be filed within fifteen months of the malpractice, not within 15 months of the discovery of the malpractice. In Wilkinson's case, the statute of limitations had run out so she was unable to file a suit before the cancer was discovered.

The outcry over this appalling case has caused some politicians in New York to recognize the unfairness of the current statute of limitations law. "Lavern's Law" has been proposed in the state legislature to alter the statute of limitations to the discovery date. There's a real possibility this law will ultimately be passed after previous failures. The medical and insurance businesses have lobbied against this change saying it would be unaffordable. Other states without the date of discovery rule include Arkansas, Idaho, South Dakota, Minnesota, and Maine. The passage of this law may pave the way for change in these states too.

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