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No Change for New York Medical Malpractice Statute of Limitations

In New York last week, a bill called Lavern’s Law died in committee. The bill had been passed by the assembly and was approved by the governor. However, the majority leader in the house refused to bring the bill to the floor for a vote. Named after Lavern Wilkinson, a woman who died as a result of medical malpractice in 2013, the bill would changed the statute of limitations for a medical malpractice action to start at the time that the patient discovers the malpractice. The current New York statute starts the statute of limitations at the time the malpractice occurred and is usually two years and six months from the time of the malpractice. The statute of limitations is even shorter - only one years and three months from the time of the malpractice - in the case of a city hospital defendant.

Lavern’s case began in February of 2010 when she visited Kings County Hospital complaining of chest pains. The doctors there ordered an EKG and a chest X-ray and later sent Lavern home with a clean bill of health and instructions to take Motrin for her pain. In fact, the radiologist’s review of that chest X-ray noted a suspicious nodule on Lavern’s right lung, but this was never communicated to Lavern. Lavern visited the clinic for follow-up appointments over the next two years, continuing to complain of a chronic cough. During this time, her symptoms were treated with cough medicine and inhalers because the doctors believed her symptoms were caused by asthma.

It was not until May 2012 when a second chest X-ray was taken. This X-ray showed that the nodules had doubled in size and that Lavern now had Stage 4 lung cancer, which had metastasized to her liver, brain and spine. The doctors told Lavern that she had six months to live. Lavern died in 2013 as a result of the cancer. Sadly, had her cancer been diagnosed in 2010, it is likely it could have been cured. The New York Daily News exposed Lavern’s story, which was especially tragic because of Lavern’s teenage daughter who is severely autistic and requires around the clock care.

The fact that Lavern did not discover the malpractice until after the statute of limitations had run put her lawyers in a tight spot. When the city offered a settlement of $625,000, the lawyers felt like they were obligated to accept it. If they had attempted to take the case to trial, there was a good chance they could have ended up with nothing because of the run statute of limitations. However, one medical malpractice attorney estimated that if the statute of limitations were not an issue, Lavern’s case was worth “in excess of $10 million,” which makes the settlement amount look rather meager in comparison. In addition, some experts estimate that the care required for Lavern’s daughter will run about $150,000, which means that the settlement amount might run out before the daughter turns 20 years old.

The New York Daily News notes that 44 states have “date of discovery” laws similar to Lavern’s Law. North Carolina is one of those states. The statute of limitations for a medical malpractice claim in North Carolina is generally three years from the last act of the defendant giving rise to the injury.  However, there are a few exceptions to this general rule.

North Carolina statute G.S. 1-15(c) states

Except where otherwise provided by statute, a cause of action for malpractice arising out of the performance of or failure to perform professional services shall be deemed to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action: Provided that whenever there is bodily injury to the  person, economic or monetary loss, or a defect in or damage to property which originates under circumstances making the injury, loss, defect or damage not readily apparent to the claimant at the time of its origin, and the injury, loss, defect or damage is discovered or should reasonably be discovered by the claimant two or more years after the occurrence of the last act of the defendant giving rise to the cause of action, suit must be commenced within one year from the date discovery is made: Provided nothing herein shall be construed to reduce the statute of limitation in any such case below three years. Provided further, that in no event shall an action be commenced more than four years from the last act of the defendant giving rise to the cause of action: Provided further, that where damages are sought by reason of a foreign object, which has no therapeutic or diagnostic purpose or effect, having been left in the body, a person seeking damages for malpractice may commence an action therefor within one year after discovery thereof as hereinabove provided, but in no event may the action be commenced more than 10 years from the last act of the defendant giving rise to the cause of action.

Therefore, the statute of limitations for a medical malpractice claim is generally three years from the last act of the defendant giving rise to the injury.  However, if the injury is not reasonably discovered within 2 years after the last act of the defendant, then the plaintiff has one year from the date of the discovery of the injury to commence the suit.  But in no event can the action be commenced more than four years from the last act of the defendant, or more than ten years in the case of damages sought by reason of a foreign object left in the body.

If you have been injured from medical negligence, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450 to discuss your options.

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