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Legislation to Protect Patients in New York State Fails Again

September 16, 2015

Back in the summer of 2013, this blog wrote about statute of limitations amendment that couldn’t make its way out of the New York state legislature. Lavern’s Law is named after a Brooklyn woman whose curable lung cancer went undiagnosed for years–despite several rounds of x-rays and at least one CT scan–eventually killing her slowly and painfully. She left behind a daughter who is autistic and profoundly disabled.

Before Lavern Wilkinson died from cancer (which experts at Yale now say has a 75 percent cure rate), she tried to bring a suit against the doctors. These are the same doctors who, after seeing a lump in her lung, did not tell her about it.

What she didn’t know, however, is that New York is one of the very few states that that doesn’t include a “date of discovery” in its statute of limitations, which describes the span of time between a doctor’s act of negligence and a lawsuit being filed. Rather, the clock begins to tick at the moment when the act of negligence itself occurs, not when it is noticed. In 44 other states, the clock starts when a person should reasonably have discovered the negligence in question. Obviously, this is a lot more fair to the patient, who may have no idea at all that their doctor did something wrong until much later.

According to an opinion piece in a recent edition of the New York Times, Lavern’s Law passed the state assembly, drew support from more than half of the state senate (not to mention from New York’s governor Andrew Cuomo), and had the vocal support of private citizens. Still, it was held up in the senate earlier this summer by the chamber’s majority leader John J. Flanagan, who blocked a vote on the measure.

This Times article, other than debunking common myths about medical malpractice (that only about 1 percent of hospital errors make it to a claim, that most awards are quite modest) goes on to argue that “[t]he opposition to Lavern’s Law came from the hospital and health care lobby, apparently concerned that the bill might result in more” suits against the industry. The article’s author says that this is definitely a possibility, but that “the actual number would probably be miniscule.”

As this blog has argued in the past, squabbling about the numbers of and awards from lawsuits that result from preventable errors is secondary: Healthcare providers should instead focus on “keep[ing] the negligent act from ever happening in the first place.” We’ve written about some ways hospitals can improve patient safety, but these authors take a different tack, homing in on highly-paid hospital employees. They suggest that 30 percent of salaries normally paid to the 10 highest-paid administrators and doctors at each facility be directed instead toward patient safety initiatives: “If 30 percent of their compensation was tied to an annual reduction in malpractice claims against their hospital, patient safety would be a higher priority.”

As long as the fighting over medical malpractice lawsuits remains focused on doctors, courts, and insurance companies rather than on patients, preventable mistakes will continue to happen.

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