Lavern’s Law

lavern's law

It sounds simple: if your health suffers from a doctor’s negligence, just sue them, recover the fair compensation you deserve, and move on. But certain medical malpractice actions are not that simple, especially if you live in a state with a short statute of limitations. Tragically, thousands of Americans receive an incorrect or delayed cancer diagnosis every day. By the time they do finally receive a diagnosis, it’s far too late to save their lives because their cancer has spread so much. This is what happened to a New York woman named Lavern Wilkinson. Because of her tragic cancer diagnosis story, the state of New York passed a new law called Lavern’s Law.

Below, the Albany, NY, medical malpractice lawyers at Bailey, Johnson & Peck explain how Lavern’s Law can affect all future medical malpractice claims.

People who lose years of their lives due to diagnostic errors should hold medical professionals accountable for their negligence. The experienced Albany misdiagnosis attorneys at Bailey, Johnson & Peck can help you do that. Call 518-456-0082 to start an attorney-client relationship with us today.

How Many Americans Are Diagnosed With Cancer Every Year?

In 2021, approximately 1.9 million Americans were diagnosed with cancer, and approximately 600,000 died from cancer, according to data from the American Cancer Society. The most common type of cancer in the U.S. is breast cancer, with more than 280,000 diagnoses expected in 2022 alone.

Types of Diagnostic Errors

Because cancer is such a rampant disease in the U.S. that shares many symptoms with less serious illnesses, a doctor’s failure to diagnose cancer is unfortunately very common. There are a few types of diagnostic errors that frequently appear in cancer misdiagnosis cases, and they are incorrect diagnosis, missed diagnosis, and delayed diagnosis.

Incorrect Diagnosis

An incorrect diagnosis occurs when a medical professional fails to diagnose cancer cases correctly. Instead, the doctor may diagnose the patient with a less serious illness with some of the same symptoms. In this case, the doctor should look into a differential diagnosis process.

Missed Diagnosis

A missed diagnosis occurs when a doctor tells a patient that there is nothing wrong with them, or they just don’t know what’s wrong with them and sends them home. They do not receive any diagnosis from the doctor despite their symptoms. Tragically, for many cancer patients, a missed diagnosis is a death sentence.

Delayed Diagnosis

A delayed diagnosis occurs when a doctor fails to provide a cancer diagnosis in a timely manner. In many cancer misdiagnosis cases, patients often don’t receive a diagnosis until their condition has significantly deteriorated.

For cancer patients especially, a delayed diagnosis can make or break someone’s mortality rate. Cancer is a slow-growing disease, but early detection is key for high survival rates. If a patient comes in claiming chronic stomach pain and bloody stools, and their doctor doesn’t diagnose them with colorectal cancer until six months later, the patient could have lost years of their life in just that short time period.

lavern's law ny

How Often Does Medical Misdiagnosis Occur in the U.S.?

We will never know for sure how many misdiagnosed cancer cases happen every year. Some people live their last days not knowing that they have cancer due to countless trips to the doctor and countless missed diagnoses.

However, diagnostic errors certainly make up the majority of annual medical malpractice claims in the United States. In fact, a 2013 study from Johns Hopkins Medicine states that diagnostic errors alone caused up to 160,000 injuries and deaths on an annual basis between the years of 1986 and 2010. This means that up to 3,840,000 injuries and deaths could have occurred during that 24 year time period.

Commonly Misdiagnosed Cancers

A 2022 study from JAMA Network Open lists colorectal cancer, lung cancer, breast cancer, prostate cancer, and bladder cancer among the top 10 misdiagnosed diseases in the United States. But how does this happen?

Failure to diagnose any illness or disease can happen for a variety of reasons. In many diagnostic error cases involving cancer, the most common reasons include poor communication between doctor and patient, poor communication between doctors and other medical professionals, and inaccurately interpreting results from tests and scans. In fact, the 2022 study listed above claims that 59% of the misdiagnosis cases occurred due to “testing challenges.”

Lavern Wilkinson’s Cancer Story

Lavern Wilkinson was a 41-year-old woman from Brooklyn, New York, who ultimately died due to medical malpractice in March 2013. More specifically, she died from lung cancer that no one diagnosed until it was far too late.

Lavern’s story begins in February 2010 at the Kings County Hospital in Brooklyn, New York. She showed up to the emergency room with chest pain and a chronic cough. After obtaining informed consent, her doctors ordered a chest X-ray and an EKG, which revealed a two centimeter malignant tumor in her right lung. Her doctors never informed her of this spot in her lung. Instead, a first-year resident sent her home with instructions to take Motrin for her chest pain.

Towards the end of her life and her cancer battle, doctors discovered that if she would have been properly diagnosed and treated for this mass in her lung, she could have lived. That’s because her lung cancer was still in its early stages in 2010.

Two years later, in May 2012, Lavern returned to the same Brooklyn ER for follow up care. Again, she complained of chest pain and a chronic cough. Her doctors ran more tests and discovered that not only did she have lung cancer, but that her cancer also spread to her brain, spine, and liver. Her doctor also informed her that they had found lung cancer in the prior results of her scans. At this point, it was too late to treat the cancer and save her life.

It was during these last few months of Lavern’s life that she and her family began looking into filing a cancer misdiagnosis claim against Kings County Hospital. However, she could not file a claim for such action because New York’s statute of limitations expired.

Before she died in 2013, Lavern accepted a $625,000 settlement from the city of Brooklyn, even though it was estimated that her case was worth approximately $10 million.

How Lavern’s Law Changed New York’s Statute of Limitations

Lavern’s family and supporters hoped that her tragic wrongful death would make a huge change in New York law so that other people wouldn’t endure the same situation.

Sure enough, New York State Governor Andrew Cuomo signed a new law in 2018 called Lavern’s Law (Senate Bill S6800). This New York state law basically extends the statute of limitations for cancer patients who received a misdiagnosis. That way, they could take a medical malpractice action years later and potentially receive millions of dollars in financial compensation.

Before Lavern’s Law, the New York medical malpractice statute of limitations ran two and a half years from the day such a negligent act occurred. There was only one exception to this rule: if a patient discovered that a doctor had left surgical materials inside their body. Patients who suffer major foreign body cases like this had an extra year to take legal action under the previous New York law.

Now, with Lavern’s Law in place, New York’s statute of limitations centers around the discovery rule. This means that victims of medical malpractice have 2.5 years from the date of these situations to file a claim:

  • When the patient knew or should have known that the negligent failure to diagnose cancer has caused their health complications,
  • Or the last date of continuous treatment for the injury or illness.

Lavern’s Law also states that victims have a maximum time frame (AKA: an outer limit) of seven years from the date of discovery or the date of the last treatment to file a medical misdiagnosis claim. This new discovery rule can help prevent victims like Lavern Wilkinson, from being time barred from filing medical malpractice actions.

lavern's law new york

Call Albany Medical Malpractice Lawyers at Bailey, Johnson & Peck Today

The legal team at our Albany law firm is passionate about fighting for justice for the victims in all sorts of medical malpractice cases, including cancer cases. Cancer is a terrible disease, and allowing people to suffer and potentially lose their lives to cancer when they don’t have to is even more terrible. Allow the experienced team of Albany cancer misdiagnosis lawyers at Bailey, Johnson & Peck to fight for your justice. Call 518-456-0082 to start an attorney-client relationship with us today. We offer a free consultation to all our new clients.


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