Update on New York’s Lavern’s Law

By Thomas A. Mobilia, Esq. and Daniel L. Freidlin, Esq.
Monday, October 22, 2018

By now, most New York state physicians are aware that the statute of limitations for certain medical malpractice actions was amended earlier this year. The amendment frequently referred to as “Lavern’s Law” extended the limitation period for malpractice cases involving a claimed failure to diagnose cancer. The new statute of limitations provides that a failure to diagnose a cancer case must be commenced within two and a half years from when a patient “knows or reasonably should have known of the alleged failure to diagnose a malignant tumor or cancer, whether by act or omission, or reasonably should have known that such negligent act or omission caused the injury.”

Lavern’s Law took effect on January 31, 2018. As enacted, it provides that an action based upon an allegedly negligent failure to diagnose cancer or a malignant tumor must be commenced within two and a half years of the later of either: (1) when the person knows or reasonably should have known of such alleged negligent act or omission and knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided that such action shall be commenced no later than seven years from such alleged negligent act or omission; or (2) the date of the last treatment when there is continuous treatment for such illness or condition.

Prior to the law’s passage, it was widely reported that it would be applied retroactively. This raised concern that plaintiff’s lawyers would attempt to revive cases that had been time barred for years. Radiologists could be expected to be the most affected by this change in the law, as it is applicable only to cases involving an alleged failure to diagnose cancer, i.e. failure to detect a malignancy of an imaging study.

Although there is no statutory language addressing the revival of claims that were dismissed as time barred under the pre-Lavern’s Law, the legislative history contains a provision which revives a previously dismissed actions which “became time-barred under any applicable limitations period then in effect” within 10 months prior to the January 31, 2018 effective date; i.e. on or after March 31, 2017. The revived actions had to have been filed by July 31, 2018. Notwithstanding this language, plaintiff’s attorneys attempted to revive cases from years earlier.

Now that the July 31, 2018 deadline has passed, the retroactive provision of Lavern’s Law is inapplicable. However, going forward, the statute of limitations for failure to diagnose cancer cases will result in lawsuits that can be brought up for up to seven years (or more where there is continuous treatment) after the treatment was rendered. With the passage of time, memories of the events fade, witnesses become unavailable and records are lost or destroyed. The move toward electronic records may minimize the potential for lost or discarded medical records, but ancillary evidence, such as older, nondigital films or software programs used to interpret imaging in the case of the defendant radiologist, may not be available years later.

Given the potential of having to defend a case years later under Lavern’s Law — when it may be impossible to recall the rationale chosen for the course of treatment recommended — physicians should also make sure that their contemporaneous documentation is sufficiently detailed to allow them to reconstruct their medical judgments years later. It may also be beneficial for healthcare providers to maintain records for at least 10 years after the last date of treatment and provide sufficient detailed documentation about their encounters with patients so that they will be in a better position to defend themselves should a lawsuit arise.

Thomas A. Mobilia, Senior Partner and Daniel L. Freidlin, Partner are attorneys at Martin Clearwater & Bell LLP where they focus their practice on the defense of medical malpractice matters. For more information, visit mcblaw.com.