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Statute of Limitations Amendment, Inspired by Cancer Patient, Dies in NY Legislature

July 17, 2013

Lavern Wilkinson of Brooklyn, New York, took a bus to Kings County Hospital’s emergency room in the winter of 2010, experiencing sudden and severe chest pains. She thought she was having a heart attack, but after a few tests–including a chest x-ray–doctors told her she was free to return home. A story in the New York Daily News reports her chart read, “You should take Motrin for pain, and follow up with your doctor.” A radiologist who examined her x-ray, however, found a nodule on Wilkinson’s lung; he recommended she have an additional x-ray, plus a CT scan. But nobody told Wilkinson–a nonsmoker–any of this and doctors attributed these symptoms to her longstanding battle with asthma.

She continued to suffer from chronic chest pain and coughing, ultimately resulting in another emergency room trip two years later in the spring of 2012. A new x-ray showed that the growth had doubled in size and was cancerous. She later learned that the cancer in her lung had spread to her spine, brain and liver. Doctors who have studied Wilkinson’s case, according to the Daily News piece, claim that she had “a good chance of being cured with surgery” if an accurate and timely diagnosis had been made. The chief of medical oncology at the Yale School of Medicine says that the cure rate in such cases, if the cancer is caught early, is around 75 percent.

A member of Wilkinson’s church suggested she might have a potential medical malpractice lawsuit due to the hospital’s mistake in not notifying her of the results of her initial x-ray. She soon found an attorney and tried to move forward. What she discovered, however, is that New York is one of only six states that does not have a “date of discovery” statute included in its statute of limitations (the amount of time allowed between a doctor’s negligent act and the filing of a lawsuit).

What this means is that in the eyes of the law in the State of New York, the clock starts ticking at the moment at which medical negligence occurs. In the other 44 states, the clock does not start until a person should reasonably have discovered or known some kind of negligence has occurred. This common-sense approach is rejected in New York, where Lavern Wilkinson’s meritorious claim was time-barred before she even knew that she was the victim of malpractice. Lavern Wilkinson died in March of this year, leaving behind a profoundly disabled, autistic, teenage daughter, Micalia.

New York Assembly woman Helene Weinstein introduced and sponsored an amendment to the state’s statute of limitations, calling it Lavern’s Law, but, as the Daily News reported in a story very recently, it “has died in Albany without the support of [the] State Senate leader […] despite a record 30 senators who were ready to vote for the bill.” Weinstein said, “It seemed pretty obvious that the Senate wasn’t advancing the bill, and it was going to be a heated debate in our house with it looking like it had a chance to become law this year […] We got further than we ever have before, so I am hopeful for next year.”

This is a prime example of a major weakness in the civil justice system of a very populous state. While complaints about the prevalence of so-called jackpot justice and claims that medical malpractice suits are out of control dominate the media, we hear nothing about the difficulty average citizens have in getting their cases heard before a jury. Wilkinson should have been told about her cancer, but she was also entitled to use the civil justice system to as a means to help her daughter after her death. This is a tragedy that the legislature of New York should bear in mind during its next session.

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