Last week I went to Albany to participate in Lobby Day on behalf of the New York State Trial Lawyers Association (NYSTLA). Our organization went to the capital to meet with members of the State Assembly and Senate to discuss a number of bills, outlining our support or opposition to proposed changes in various laws.
There are two bills in particular that were borne out of heartbreak and therefore, impossible to understand why they have not been enacted into law. The first is the bill on Date of Discovery — commonly referred to as Lavern’s Law. You may be familiar with the background behind Lavern’s law as the Daily News published an article in 2015 about Lavern. She was a single mother who had visited a City hospital after feeling ill. The hospital sent her home even after an x-ray showed a suspicious mass in her lung. If she had been advised by the doctor about this, she would probably still be alive as the mass was a curable form of lung cancer. Tragically, she was not told about the results until it was too late and her condition was terminal. Lavern died in 2013, leaving behind a developmentally disabled daughter who was barred from bringing a lawsuit against the hospital and doctor because the time to bring a lawsuit had passed. The statute of limitations begins to run at the time of the malpractice, not when the malpractice was discovered.
Sadly, this travesty has affected others who were never advised that their test results were abnormal. We assume that once we have tests performed, doctors would notify us in a timely manner of any problems. But what if they don’t? There are a number of cases where CT scan results, mammograms, x-rays, and Pap smears all were misread or never reviewed, resulting in life-threatening consequences or death. For Lavern and others, this lifesaving information was never provided – and that failure proved fatal. New York’s statute of limitations on malpractice is old and antiquated and needs to be updated. We are one of only six states with a time limit that starts once an injury is caused and not when it is discovered. Lavern’s Law would provide a 2½-year statute of limitations from the time the person knew or should have known that a negligent act caused an injury. Governor Andrew Cuomo, understanding the impact, agreed to sign the bill into law if it passed the Senate and Assembly.
The second bill proposed is known as the Grieving Families Law and would change the current New York Law on Wrongful Death, which only allows families to recover the lost income from a family member who died. Many of my colleagues told stories of having to advise a grief-stricken family that their homemaker spouse, or child, or elderly parent’s life was worthless under the law, as the law only values the lives of high wage earners. This archaic law was enacted in 1847, and has never been amended. While many other states have acknowledged that the loss of a loved one is monumental, and that the wrongdoers should be held accountable, New York is not one of them. This proposed law would allow families to be compensated for the profound emotional loss and grief caused by a wrongdoer.
What these laws also will accomplish is to promote a safer society by holding wrongdoers accountable for their actions. It may be too late for Lavern and others in her situation, but by passing these laws, we may be able to prevent future tragedies and show that Lavern did not die in vain.
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.
Prior results do not guarantee outcomes.