Change in Statute of Limitations for Certain Medical Malpractice Actions


April 9, 2018

by David M. Goodman, Esq.

 

On January 31, 2018, New York State Governor Andrew Cuomo signed “Lavern’s Law,” establishing a tolling provision for certain medical, dental, and podiatric malpractice cases.  The changes and amendments can be found at CPLR section 203(g)(2).  The statute provides a tolling, or extension, for calculating the time when the statute of limitations begins to run in cases of failure to diagnose cancer.  Prior to this change, there was no distinction between cancer and other medical malpractice actions.  While the 2 ½-year statute of limitations for medical malpractice actions under CPLR section 214-a has not changed, the new law affects when that time will begin to run.  CPLR section 203(g)(2) now provides that in medical, dental, or podiatric malpractice cases based on an act or omission alleging negligent failure to diagnose cancer or a malignant tumor, the 2 ½-year statute of limitations will not begin to run (i.e., is tolled) until the later of either:  (i) when the person knows or reasonably should have known of the alleged negligent act or omission or that such alleged negligent act or omission has caused injury, or (ii) the date of the last treatment where there is continuous treatment for such injury, illness, or condition.

 

 

Section (i) thus provides a “date of discovery” exception in cancer cases.  The 2 ½-year statute of limitations begins to run when a person discovers (or reasonably should have discovered) an alleged failure to diagnose cancer or a malignant tumor and that such alleged failure has caused injury.  For example, if a woman goes in for a mammogram that is read to be normal but then discovers three years later that the mammogram was misread and there was a malignancy, the statute-of-limitations clock does not begin to tick until the point of discovery.  Before the passage of this statute her action would have been time barred based upon the 2 ½-year statute of limitations, but after the passage of this statute, the patient would have 2 ½ years beginning from the point of discovery to commence an action.  The statute does provide a limitation or “cap” on how long the action can be tolled – i.e., the action shall be commenced “no later than 7 years from such alleged negligent act or omission.”  In the eyes of the legislature, the 7-year cap places finality on the commencement of malpractice cases under this tolling provision.

 

 

Section (ii) is merely a codification of the continuous treatment doctrine and provides that the 2 ½-year statute of limitations will begin to run on the date of the last treatment.  This continuous treatment provision does not include the 7-year cap.