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Many medical malpractice victims are denied the chance to sue

As in other states, New York law puts a time limit on how long victims of medical malpractice may wait before suing the offending physician. This is known as the statute of limitations. One reason for statutes of limitations is that, once too much time has passed, important evidence may be lost or damaged, and witness’ memories may be faded.

The problem is, with medical malpractice, it is not always immediately clear that the patient was harmed by a medical mistake. A missed diagnosis or surgical error may not be detected until years later.

The vast majority of states acknowledge this fact by not having the statute of limitation’s clock start ticking until the malpractice is discovered. But five states, including New York, still use the traditional starting point, which is the moment the malpractice actually happened.

Critics say this leads to unjust results in many cases, such as with a woman diagnosed with liver cancer earlier this year whose story was reported by WCBS-TV. After the woman underwent surgery to remove the cancerous mass from her body, doctors told her the cancer should have been diagnosed back in 2012, when the woman underwent a CT scan for an unrelated medical problem.

By the time she found out about the previous failure to diagnose her cancer, it was too late to take action against the doctors who missed it, even though her health suffered as a result.

The New York state Senate is considering a bill, called “Lavern’s Law,” that would shift the statute of limitation’s start time to the date of discovery. The Assembly already passed the bill, and Gov. Andrew Cuomo has sworn to sign it if it reaches his desk.

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