Deciding when statute of limitations begins …


Gov. Andrew Cuomo will soon decide whether to sign or veto a bill that would change the point at which the statute of limitations for medical liability claims starts to run. Currently, the period in which a lawsuit can be filed begins at the time of the alleged malpractice. The proposal awaiting executive action would instead start the clock on the date that the patient discovers the issue.

Advocates for the trial lawyers branded the bill as “Lavern’s Law” after a woman who was misdiagnosed in a New York City public hospital and was unable to file a lawsuit due to the passage of time. The legislative solution there should have been simple: extend the statute of limitations for public health-care providers to match the existing rule for private ones. Unfortunately, the personal injury trial lawyer lobby exploited Lavern’s situation to promote a measure that will make it easier for them to file lawsuits — and compound New York’s on-going medical liability crisis.

The reality is that New York’s medical malpractice system is already in critical condition. The state boasts the highest per-capita medical liability payouts in the country. Nearly 20 percent of all the medical liability payouts in the United States are paid in this state — more than the total payouts for the entire Midwest and more than the total of all the western states. If signed into law, this bill would only make matters worse.

The enactment of this legislation would increase the cost of medical liability insurance for doctors and hospitals. In addition, the law would have a detrimental impact on New Yorkers’ access to care, especially when it comes to women seeking breast cancer screenings. According to a study published by the Radiological Society of North America, nearly one in three radiologists contemplate avoiding mammography due to fear of litigation. And that figure will likely increase should this bill be signed by the governor.

A new survey released just this month from Johns Hopkins University points out that “defensive medicine” is widespread. The paper’s senior author notes that “unnecessary medical care is a leading driver of the higher health insurance premiums affecting every American.” In fact, 85 percent of the physicians polled for the report said that fear of malpractice is the No. 1 driver of resource-wasting overtreatment. Rankings from Medscape and Wallet Hub already place New York as the worst state for doctors to practice each year and medical professionals continue to be driven to other states.

Given the current liability climate and instability of the state’s medical malpractice system, this legislation should not be signed. Before any drastic changes are made to the statute of limitations, Gov. Cuomo and the Legislature should instead work with all stakeholders to overhaul the entire medical liability apparatus. New York’s current system is in dire need of reform. This state has a lower standard for evidence than federal courts, does not allow cross-examination of expert witnesses, and mandates that monetary judgments accrue a whopping 9 percent interest during the appeals process.

Just look at the safe-guards in other states: 28 of the states that start the statute of limitations on the date that negligence is discovered — as proposed in this bill — have passed laws that limit payouts for non-economic damages.

Back in 2011, the Medicaid Redesign Team proposed a $250,000 cap on non-economic damages. Gov. Cuomo endorsed that plan, and it was included in that year’s executive budget proposal. At the time, the Medicaid Redesign Team estimated that such a cap could reduce medical liability insurance premiums by 24 percent statewide. That measure was defeated after backlash from the state’s politically influential trial lawyer lobby, and now those same lawyers want more.

Before the current crisis becomes a catastrophe, comprehensive medical liability reform should be a priority for elected officials. They need to listen to all impacted parties and focus their efforts to map out a medical liability system that works for patients, doctors and hospitals alike.

Adam Morey is government affairs manager at the Lawsuit Reform Alliance of New York.

I was only 11 years old when I stood with my father at my mother’s grave. She had undergone a hard struggle against cancer, but treatment came too late.

One of the most painful thoughts that I had then was, “If only….”

If only my mother had been told what she needed to know, she might still be with us. I would still have a mother. My father would still have his bride.

My mother was responsible about health, getting mammograms for years. So we were shocked when suddenly she was told she had advanced breast cancer that had already spread to her bones.

Even with treatment, she grew weaker and weaker. Perhaps most awful, my brother contracted another kind of cancer at this time, which was fatal, and my mother was so ill she had lost the ability to use her arms. She could not even hold him.

Then a little over two and a half years later, we learned something terrible. A radiologist reviewed her medical files and discovered that a prior mammogram had identified cancer, yet they hadn’t notified her.

I am no medical expert, but I do know that early detection and treatment makes a difference in breast cancer survival rates. More time with my mother would have meant the world to us. Now it was too late.

It is one thing to lose a loved one to something no one can do anything about. But what happened to my mother was wrong. She didn’t get the chance to fight her breast cancer.

So it became important to us to seek accountability. That’s when we were pummeled, again.

We were told the statute of limitations had run out and my mother should have brought her legal action within two and a half years from when that earlier mammogram sounded the warning. But how? She didn’t know the cancer was growing inside. The doctors’ negligent failure to alert her, which endangered her life, also kept her from holding them accountable — an impossible situation.

An antiquated New York statute of limitations law caused this harsh irony. It is disturbing and embarrassing that New York is one of only six states left with such an unfair, outdated law. But our Legislature, with a bipartisan vote of 56-6 in the Senate and 112-27 in the Assembly, has passed a bill that allows cancer patients to seek justice for undisclosed medical diagnostic negligence.

It is called Lavern’s Law, after Lavern Wilkinson, a woman who suffered a fate like my mother’s. She was a single parent and left a disabled daughter. Another woman, Lissy McMahon, similarly was not informed of a growing cancer. She was also a single parent, with a teenage son.

There are not a lot of people like us. Only a few examples have arisen over the years. But when it does happen, the impact on the family is devastating. We should not be denied the right to hold those who wrong our families accountable when their negligence is why our loved ones did not discover their cancer in time to meet the statute of limitations. We should be able to seek justice and closure.

Gov. Andrew Cuomo has spoken favorably about Lavern’s Law in the past. While it’s too late for my family, another family like mine in the future should not be denied the right to seek justice. My mother would have wanted this law to pass, even if it didn’t help her. That’s the kind of person she was. In honor of her, I am strongly committed to this and I hope Gov. Cuomo signs Lavern’s Law.

Diane Dreifuss lost her mother to cancer and was denied access to the civil justice system because of New York’s medical malpractice statute of limitations.

Leave a Reply