Lavern Wilkinson’s family was barred from seeking justice for her death due to the statue of limitations. (DEBBIE EGAN-CHIN/NEW YORK DAILY NEWS)
Almost two years ago, many of us were shocked and saddened when we heard Comedian Joan Rivers was critically injured during a medical procedure and was subsequently removed from life support. I had been lucky enough to see her perform live; she was so full of energy and had such an incredible presence. Although Ms. Rivers was 81 years old, she was actively performing at the time of her death and had a number of appearances scheduled.
I just read that her family reached a settlement in their malpractice claim against the clinic that performed the procedure, ultimately leading to her death. It appears the clinic engaged in procedures not authorized by the comedian, and they were performed by physicians not licensed to perform them in the clinic setting. Most disturbing was that the medical personnel failed to properly identify her deteriorating condition during the procedure, which caused damage to her brain and heart when her oxygen levels decreased. The settlement is rumored to be in the tens of millions.
While Joan Rivers’ death was tragic, her family was able to secure their financial future as the current law in New York allows for a two-and-a-half-year statute of limitations from the date the medical malpractice occurred to file suit against private, nonprofit hospitals or doctors. That window, however, is just 15 months when suing a municipal hospital. In Joan Rivers’ case, it seemed obvious from the very beginning that her death occurred as a result of medical error and a lawsuit was commenced.
There are many others who have been prevented from seeking justice and monetary benefits as a result of medical malpractice because it was not discovered until after statute of limitations passed. One example of this was Lavern Wilkinson, a single mom with a severely handicapped daughter, who died in March 2013 from a curable form of lung cancer. Wilkinson had gone to the emergency room at Kings County Hospital in 2010 with a terrible cough. The staff performed an x-ray showing a suspicious mass, but the single mom was never notified of this and was sent home. When she returned to the hospital two years later, it was discovered that the cancer had spread and her condition was terminal. When she tried to sue the hospital to ensure financial security for her disabled child, she was advised that the current statute of limitations barred her from seeking damages against the hospital. Tragically, Lavern died in March 2013. Unfortunately, Lavern is not alone in this miscarriage of justice. There are so many more horrible examples of people who did not find out about the errors committed by medical personnel within the two-and-a-half-year years they have to file. New York is one of only six states that adhere to this archaic rule; 44 others allow for some sort of statute based upon the date of discovery of the malpractice.
There is currently a law pending in the New York State Legislature that would address this travesty. This bill would provide that the two-and-a-half-year statute of limitations begins when the patient knows or should have known an alleged negligent act caused injury. This bill was introduced more than a year ago and is still pending. It is known as Lavern’s Law – named after Lavern Wilkinson. Lavern’s death should not be in vain. Ask your State Legislator to support this law and give victims of medical malpractice the justice they deserve.
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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