Proponents of reforming the statute of limitations to file a medical malpractice case enjoyed a big win this year when the Assembly passed the legislation for the first time, but the bill ultimately failed to pass the state Senate in June during the rushed and chaotic end of the session.

Lavern’s Law, named after Lavern Wilkinson, a Brooklyn woman who died in 2013 from a curable form of lung cancer after doctors misdiagnosed her, would start the limitation period to file a medical malpractice suit when the malpractice is discovered, not when the procedure occurred. Forty- four other states have similar laws.

The bill is sponsored by Assemblywoman Helene Weinstein and goes through the Codes Committee, not the Health Committee.

“There are some things where New York laws are different from other states and we’re proud of it – but I don’t think this should be one of them,” Assembly Health Committee Chairman Richard Gottfried said. “If someone runs you down with their car, you know that the minute it happens, but if something is wrong inside you, you have no way to know that until symptoms develop.”

Currently, there is a 15-month limitation to file a malpractice suit in public hospitals and a 30-month limitation at private hospitals. 

Some members of the medical community, such as the Greater New York Hospital Association and the Healthcare Association of New York State, have opposed the bill and fear it will cause medical malpractice insurance rates to soar.

State Senate Health Committee Chairman Kemp Hannon believes the issue needs more examination.

“I think what has to happen is you need to look at the implications of making any changes at the cost of the system at a time when we are cutting back on the monies that go back to hospitals and their admissions,” Hannon said. “It was a compromise at the time. The question is what facts justify it and what facts come up that say it should be changed. It needs a thoughtful conversation, not some headlines.”

As one alternative, Hannon proposed a bill to expand the state’s medical indemnity fund to serve as a funding source for future health care costs.

The Assembly is expected to again pass the bill during the 2016 legislative session and it could gain traction in the state Senate. Senate Deputy Majority Leader John DeFrancisco has publicly supported the bill and pushed for its passage in the Republican-controlled chamber, but the bill lost a heavyweight proponent when then-state Senate Deputy Majority Leader Tom Libous, who is battling cancer, was found guilty of a felony this summer and removed from office.

Toward the end of the 2015 legislative session, Gov. Andrew Cuomo also publicly backed the bill and has said he would sign the legislation if passed.

State Senate Majority Leader John Flanagan said he wants to discuss the issue as part of a broader package of reforms.

“I think it is elemental fairness,” Gottfried said. “The law should certainly expect people to move expeditiously to bring lawsuits, but you can’t really expect someone to get their case together before they have learned they’ve been injured.”

 

Revamping the organ donation industry

Both the Assembly and state Senate health committee chairmen have set their sights on revamping the state’s organ donation registry next year after the state failed to award a contract to a nongovernmental organization to redo the state’s registry.

“There has been a total failure to make the award of that contract,” state Senate Health Committee Chairman Kemp Hannon said. “Lack of a functioning registry for people willing to make organ donations serves as a total throttle on those who can make donations and cuts down on the donations.”

Efforts to improve the system have been ongoing for years. Nationally, an average of 22 people per day die waiting for a transplant. In 2012, Gov. Andrew Cuomo signed legislation to boost the number of New Yorkers who register for organ and tissue donation. New York has one of the lowest organ donor rates in the nation.

“There have been efforts in New York going back over several years to improve the registry and the consent process in New York to incorporate some of the changes in the Uniform Anatomical Gift Act,” Assembly Health Committee Chairman Richard Gottfried said. “I would certainly be excited to work with the Senate to improve that process.”