When health-care providers, including oncologists, fail to promptly diagnose a medical condition or communicate their diagnosis to their patients, it can have devastating consequences for those patients. In such cases, patients may seek legal recourse through medical malpractice lawsuits, creating legal exposure for oncology practitioners. Statutes of limitations are laws that impose time limits within which these lawsuits must be filed. This column examines recent developments related to statutes of limitations, with a focus on their implications for oncology practices.
Applying Statutes of Limitations in Oncology
Statutes of limitations create a deadline beyond which a plaintiff cannot file a lawsuit following an alleged incident. Deadlines vary by state and type of claim. In medical malpractice cases, the clock typically starts running from the date of the alleged negligent act or omission. If patients fail to file a lawsuit within the specified time frame, they may lose their ability to file suit. A suit filed outside the time frame can be quickly dismissed on procedural grounds without the medical professional needing to mount a defense on the merits.
Statutes of limitations are generally adopted to promote timely resolution of disputes while preserving the integrity of evidence. Over time, evidence quality and availability tend to degrade. Defendants are shielded from defending themselves against deteriorated or missing evidence. Statutes of limitations in medical malpractice cases thus strike a balance between allowing injured patients to seek justice and protecting health-care providers from indefinite liability.
Understanding Lavern’s Law in New York State
Lavern’s Law is named after Lavern Wilkinson, a patient who visited a municipal hospital in New York City in 2010.1 Despite suspicious findings on her chest x-ray, the hospital failed to communicate a lung cancer diagnosis until 2012, when it was too late for effective treatment. Lavern’s Law extends New York State’s statute of limitations specifically for cases involving the failure to diagnose cancer or malignant tumors. Under Lavern’s Law, an action may be brought within 2 years and 6 months from the date the plaintiff “knows or reasonably should have known” of the alleged negligent act or omission.
The impact of Lavern’s Law has reverberated throughout the medical and legal landscapes in New York, ensuring that timely diagnoses remain a priority.— Govind Persad, JD, PhD
Tweet this quote
Patients thus have 2½ years from the date they knew or should have known about the failure to diagnose to initiate a lawsuit. The overall time limit, however, is capped at 7 years from the allegedly negligent act or omission, irrespective of when it was discovered. Prior to Lavern’s Law, New York started the clock ticking at the time of the medical error itself and only allowed patients 15 months after the occurrence of the error to file a claim.
Real-World Example: Saffa v Katz
In Saffa v Katz, a recent New York case, a patient sued her physician for failure to diagnose vaginal cancer.2 The defendant physician argued that the patient’s lawsuit was untimely and should be dismissed even under Lavern’s Law, claiming that the plaintiff should have known that a magnetic resonance imaging (MRI) scan performed in December 2018 showed signs of cancer—and would have known about the diagnosis had she returned for a follow-up appointment in January 2019. The patient did not receive the results until November 2021; the physician and patient disagreed about the circumstances that caused the delay.
In Saffa v Katz, the trial court rejected the physician’s untimeliness argument and allowed the case to proceed, concluding that under Lavern’s Law, “the key consideration is when [the] plaintiff knew or should have known of a negligent act or omission by [the] defendant and not when she learned that she had cancer.” Because the patient did not realize she had a potential claim of failure to diagnose vaginal cancer until she was actually diagnosed in November 2021, the statute of limitations did not begin to take effect until November 2021. The physician could raise the patient’s delay in obtaining the MRI findings as a defense later in the litigation process but could not use the delay as a reason to dismiss the case. As the court noted, the physician “may continue to assert a defense with regard to [the] plaintiff’s alleged failure to follow up on the MRI report and failure to return to [the] defendant’s medical office in January 2019 to obtain the results.”
In interpreting Lavern’s Law, the court discussed several statements made by the legislators who sponsored the law. It explained that Lavern’s Law was designed to avoid allowing “a patient’s rights to expire without the patient even knowing that she had any rights.” One of the bill’s sponsors stated that without Lavern’s Law, “[patients with cancer] are at continued risk of having their rights expire before they even discover malpractice.”
How Statute of Limitations Is Applied in Other States
Most other states start the statute of limitations clock on the “date of discovery,” rather than the date of the alleged malpractice, just as New York now does under Lavern’s Law.3 Unlike New York, other states often use the date of discovery for a variety of malpractice claims, as opposed to only for failure to diagnose cancer. These states differ in how much time the patient has after the date of discovery, with most states allowing a shorter period than Lavern’s Law—many permit only a 1-year delay after discovery before filing the lawsuit. Relevant to the issue in Saffa v Katz, some states instead begin the clock at the time the patient should have learned of the physician’s alleged error, as opposed to when the patient actually did so.
Only a few other states, including Maine, Idaho, Arkansas, and South Dakota, still start the clock for the statute of limitations before the alleged event of malpractice is, or should have been, discovered. The passage of Lavern’s Law could lead these remaining states to change their laws to allow the statute of limitations clock to begin running on the date of discovery. A bill has already been introduced in Maine, for instance, to adopt a date-of-discovery rule, and advocacy groups are arguing that shifting to a date-of-discovery rule would be fairer.4
Effect of Lavern’s Law on Oncology
The impact of Lavern’s Law has reverberated throughout the medical and legal landscapes in New York, ensuring that timely diagnoses remain a priority. This legal reform underscores the importance of promptly communicating diagnoses to patients and documenting when diagnoses were conveyed. Many other states already use similar rules, and the few that do not may be poised to alter them soon.
Dr. Persad is Associate Professor at the University of Denver Sturm College of Law.
DISCLOSURE: Dr. Persad receives grant funding from the Greenwall Foundation.
Editor’s Note: This column is meant to provide general information about legal topics, not legal advice. The law is complex, varying from state to state, and each situation is different. Readers are advised to seek advice from their own attorney.
Disclaimer: This commentary represents the views of the author and may not necessarily reflect the views of ASCO or The ASCO Post.
REFERENCES
1. Borelli AR, Sullivan CA, Baker TL, et al: Health Law. Syr L Rev 68 869, 892, 2018. Available at https://lawreview.syr.edu/wp-content/uploads/2019/01/Health-Law-FINAL-v2-website-Copy-converted.pdf. Accessed June 18, 2024.
2. Saffa v Katz, 81 Misc 3d 369 (NY Sup Ct 2023). Available at https://scholar.google.com/scholar_case?case=13573856853052104283. Accessed June 18, 2024.
3. Zarick AL: Damage Deferred: Determining When a Cause of Action Begins to Accrue for a Cancer Misdiagnosis Claim, 41 U Tol L Rev 445, 450 (2010). Available at https://www.utoledo.edu/law/about/leadership-series/pdf/v41n2/Zarick%20FINAL.pdf. Accessed June 18, 2024.
4. Testimony of Taylor A. Asen, Esq: Maine Trial Lawyers Association, in Support of LD 549, an Act Regarding a Discovery Rule for the Statute of Limitations for Cases of Medical Negligence, April 6, 2023. Available at https://legislature.maine.gov/legis/bills/getTestimonyDoc.asp?id=170568. Accessed June 18, 2024.
