A cancer diagnosis is the last thing anyone wants to get from their doctor, but misdiagnosis is even more devastating. While doctors could have treated the cancer, it was busy growing bigger and potentially causing serious pain. Over-the-counter painkillers likely didn’t do a thing, and the doctor may have refused to prescribe pain pills. The doctor might have even been callous enough to say that the pain was all in the patient’s head. Lavern’s Law, a statute enacted in New York in 2018, allows victims to collect compensation for their pain and suffering via a medical malpractice lawsuit in certain situations. Learn more about your claim from our experienced medical malpractice lawyers.
What Is Lavern’s Law?
In a nutshell, Lavern’s Law amended the statute of limitations, which is how long a medical malpractice victim has to file a cancer misdiagnosis lawsuit against a medical professional who did not find cancer when the victim first started to experience symptoms. The new statute of limitations applies to lawsuits against medical and dental professionals. Lavern’s Law changed the statute of limitations so that a victim now has two-and-a-half years from when a doctor discovers cancer to file a medical malpractice lawsuit against the doctor who did not make a timely diagnosis.
Who Is Lavern?
Lavern Wilkinson died in 2013. She was a 41-year-old single mom and did not have to die. In 2010, Lavern went to the hospital with chest pain. Doctors saw a mass on her lung but did not tell her about it. A first-year resident sent her home with instructions to take an over-the-counter pain killer. A little over two years later, Lavern went to the hospital again, this time because of a chronic cough she could not get rid of. She had spent the previous two years in constant pain. When doctors ran tests on Lavern, they found that the mass was cancer that had spread to her other lung, brain, and many other body parts. Because it had spread, doctors could not eradicate her cancer. Ten months later, Laverne passed away.
The Old Statute of Limitations
When Laverne, the statute of limitations for a cancer misdiagnosis was strictly 15 months from the date of the misdiagnosis. Lavern’s attorney worked to change the statute of limitations so that people would not fall into the cracks. Some cancers grow slowly then spread quickly. If doctors had caught Lavern’s cancer when she first went to the hospital, they could have treated it and she would have most likely lived. The new law, giving misdiagnosed cancer patients two-and-a-half years from the time the patient learns of or should have known about the misdiagnosis to file a lawsuit, was signed in 2018.
Why Was It so Important to Change the Law?
A delayed cancer diagnosis can happen because the patient does not realize the doctor misdiagnosed cancer or, as in Lavern’s case, did not notify the patient of a possible cancer diagnosis. While you might think that the patient should know something is wrong and follow up, that is not always the case. Sometimes, the patient does not have constant pain. In other cases, the doctor might tell the patient that the pain is “nothing” and to take over-the-counter drugs for the pain. Some cancers grow slowly, and it could be many years before the patient seeks a second opinion. By then, it may be too late. In other cases, cancer could start as one type and morph into another type. For example, follicular lymphoma normally grows slowly, but it can morph into aggressive large B-cell lymphoma.
The Difference Between the Old Law and the New Law
Initially, a patient had 15 months from the date of a misdiagnosis to file a lawsuit. However, the patient might not have enough pain or bothersome enough symptoms to seek additional treatment for more than 15 months. In this situation, like Laverne, they would then be unable to seek compensation for the misdiagnosis. The new law states that the patient has two-and-a-half years from the time the cancer is rediscovered. If you think you may have a claim, it is best to contact an attorney as soon as possible, so that your attorney has time to prepare your claim and you do not miss the filing deadline.
Recovering Damages After a Cancer Misdiagnosis
If you discover that a doctor misdiagnosed your cancer, you can file a medical malpractice claim against them. Through that claim, you can seek to recover damages via a settlement or a lawsuit.
When Can I Settle a Medical Malpractice Claim?
When you hire a medical malpractice attorney, the attorney will work with you to write and send a demand letter to the defendant on your behalf, which starts the settlement negotiation process. If the other side makes a settlement offer that you are happy with, you can conclude your claim by signing a settlement agreement. However, if the defendant’s insurance company refuses to come to a fair and reasonable settlement, you can stop settlement negotiations at any time and file a lawsuit. Litigation is expensive for the defendant, and can sometimes prompt them to finally offer a reasonable settlement. One thing that the insurance company does not like to do—other than paying a fair and reasonable settlement—is paying a lawyer to litigate. After you file a medical malpractice lawsuit, the defendant and/or their insurance company might send your attorney additional settlement offers. It is up to you whether you decide to accept an offer or not. You can start a new round of settlement negotiations, or you can turn down the defendant’s offer. Litigation does not stop if you re-enter settlement negotiations. Once you file a lawsuit, you and the defendant have court deadlines you must abide by. Both parties must continue meeting the court’s deadlines even if you decide to start negotiating again. In some cases, you might go through the entire discovery process and have several motion hearings before the defendant offers a fair and reasonable settlement. Cases sometimes settle just a day or two before trial.
How Long Does a Lawsuit Take?
Many factors determine how long a lawsuit takes, and each case is different. While the court gives both parties deadlines, sometimes your attorney or the defendant’s attorney has to ask for an extension of time. For example, if you need an expert witness to testify about your missed cancer diagnosis, but the doctor has an emergency surgery come up, your attorney might ask the court for extra time so that they can discuss your case with the expert witness, or so that the defendant can depose your witness. In addition to discovery issues, you or the defendant might require a motion hearing. Sometimes the case cannot move forward until the court hears the motion. If the court cannot schedule the motion hearing for four weeks, it delays your case four weeks. Another example is that your attorney might want to depose the doctor or medical professional who misdiagnosed you. If that person and his or her attorney are not available for two weeks, your case has another delay.
Who Pays My Medical Bills While I’m Waiting for a Settlement or a Lawsuit?
If you have health insurance, you can use it while you pursue compensation through a settlement or lawsuit. You can speak to your doctors about how to handle any co-pays that you cannot afford. Some doctors will stop collection attempts if they know you are working on settlement negotiations or in the middle of preparing for a trial.
What if I Do Not Have Insurance or My Insurance Kicks Me Off?
If you do not have insurance but need cancer treatments, speak to your doctors. Most likely, the doctor already knows about the misdiagnosis. Explain that you are not working because of your cancer, but you are attempting to settle or litigate the misdiagnosis. Some doctors might work with you to create a payment plan or delay payment altogether until you win a settlement or a trial award.
Types of Damages You Can Recover
If you suffered a cancer misdiagnosis, you may be able to recover damages from the misdiagnosing doctor, medical professional, medical facility, and/or their insurance companies. Most awards include both economic and non-economic damages. In particularly egregious cases, if a court finds the doctor or other medical professional’s actions or inactions were grossly negligent or intentional, you might also recover punitive damages. It is usually difficult to recover punitive damages because the law sets a high bar for proving a doctor engaged in gross negligence. If the court orders a defendant to pay punitive damages, it is because the court is punishing the defendant—unlike other types of damages, a court does not order punitive damages to make the victim whole again. The court hopes that the defendant who pays punitive damages and others who are in the same situation do not repeat the actions or inactions that caused the victim undue pain and suffering.
Economic damages, sometimes called special damages, have an easily assigned monetary value. The court orders the defendant to pay economic damages in an attempt to make the victim financially whole again. Economic damages might include:
You can seek reimbursement for medical expenses from the time your cancer was properly diagnosed through the time you settle or win a trial award. If doctors expect your cancer treatments to continue beyond the date of settlement or a trial award, you may also be able to recover future medical expenses. Medical expenses include doctors’ appointments, cancer treatments, ambulatory aids, prescriptions, short-term care, long-term care, and related treatments or therapies.
Lost Wages and Earning Capacity
You can seek compensation for lost wages from the time the cancer prevented you from working through the time you settle or win a trial award. If your misdiagnosed cancer prevents you from working after the settlement or a trial award, you may also be able to recover lost earning capacity for the length of time doctors expect you will be out of work.
If you lost a loved one to a cancer misdiagnosis, in addition to the damages described above, their estate may be able to recover funeral, burial, and/or cremation expenses and other related expenses, such as filing fees for your probate case.
Non-economic damages, sometimes called general damages, do not have an easily assigned monetary value. It’s not easy to put a price on pain and suffering and other intangible losses. However, non-economic damages make you financially whole and offer monetary damages to compensate you for unnecessary non-monetary suffering. You or your estate could potentially recover compensation for:
- Pain and suffering, including emotional distress.
- Loss of companionship if the cancer misdiagnosis makes it difficult to enjoy time with your family.
- Loss of quality of life if you can show that you would have suffered less had doctors treated the cancer immediately.
- Loss of consortium if cancer prevents you from continuing to have a physical relationship with your spouse. Should cancer take your life, your estate may recover the loss of consortium.
- Inconvenience if you have to hire someone to do chores you usually do, such as grocery shopping, house cleaning, lawn maintenance, and home repair and maintenance.
In some cases, cancer can cause you to lose the use of a body part or a bodily function, depending on the type and location of the cancer. If so, you may recover compensation for these losses. If you or a loved one is suffering because of a cancer misdiagnosis or a delayed diagnosis, contact a medical malpractice attorney for a free case evaluation and see if Lavern’s Law might benefit your claim.