Despite Majority Support, Albany Legislators Fail To Consider Lavern’s Law

Lavern Wilkinson’s family was barred from seeking justice because of an archaic law.

There was a recent lawsuit filed by a woman against a major coffee chain for injuries sustained when the lid came off of a coffee cup as it was being handed to her by the barista. According to the lawsuit, the woman sustained serious burns as a result and missed more than a month of work. The lawsuit was filed two years after the accident occurred and the injured woman maintained the only reason she pursued legal recourse was that the coffeehouse failed to respond to her repeated requests for payment of medical bills. The woman indicated she was very hesitant to file a law suit as she was opening herself up to ridicule. I was extremely saddened by her reaction, but understand her reluctance.

This case brings up a similar story from a number of years ago when another woman filed suit after she was injured by scalding hot coffee in a McDonalds drive thru when it spilled on her. This was the topic of conversation for many talking heads, citing it as the poster child for frivolous lawsuits that clog the court system and cost hard-working taxpayers billions of dollars every year. The lawsuit became fodder for countless comedians and an alarm for tort reform around the country. 

What was left out in the entire media blitz is the fact that the injured woman – Stella Liebeck – then 79 years old, asked McDonalds to pay for the medical bills totaling approximately $20,000, but they refused. It was only then that she filed the lawsuit, as she sustained third degree burns over 16 percent of her body, necessitating hospitalization for eight days, skin grafts, and horrific scarring. McDonalds admitted they knew the coffee could not be consumed immediately as it was at a scalding temperature and had to cool down. The company also admitted it was aware that more than 700 people had sustained serious injuries in the 10 years prior to the Liebeck lawsuit. It appears their coffee was kept at such a high temperature in an effort to last longer. In this case, McDonalds made a conscious decision to put savings before consumers. 

The tort reform movement has been fabricating or exaggerating facts for years to push its agenda, with the legal profession being portrayed negatively on many occasions. As an attorney, I laugh along with others at the humorous lawyer jokes I hear. But putting aside that humor, I am proud to be an advocate for the injured. I have seen first hand what can happen as a result of the negligence of others.

Last week the New York State Legislature had an opportunity to rectify an unjust, archaic law by passing a bill known as Lavern’s Law, named after a woman who died of cancer three years after she had gone to the emergency room with a cough. The hospital performed an x-ray and sent her home, but never advised her that the x-ray showed a curable cancer growth. By the time she discovered the cancer was terminal, she could not seek justice because the time to file the suit had passed.

Lavern’s Law proposed to start the statute of limitations from the time a patient discovers the malpractice, rather than from the time the medical malpractice occurred. Unfortunately for many victims of malpractice, the bill never reached the floor for a vote despite overwhelming support by a majority of both the Assembly and Senate. Those who opposed this bill felt it would cause malpractice insurance to skyrocket and put many in the medical profession out of business.

The opposition misses the point. A tort in law is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who committed the act. It holds accountable the person who caused the injury. The current law for malpractice claims weakens incentives for hospitals and doctors to improve patient safety measures so these harmful incidents never happen in the first place. Lavern’s Law and other laws allowing citizens the right to jury trials actually result in a safer and healthier society.

Hopefully Lavern’s Law will be a continued topic of conversation when legislators return to Albany in January. Malpractice isn’t always discovered within what the current law considers a timely fashion. However, that doesn’t mean that injured people won’t suffer for the rest of their lives, or die, due to the negligence of others.


Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy  Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

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