Unfair New York Malpractice Law Should Be Changed

New Yorkers deserve a "Date of Discovery" rule in order to prevent the injustice of undiscovered medical malpractice.

By Mark T. Freeley, Esq. (Open Post)March 19, 2013 at 7:30pm

New York is one of only five states in the country where the Statute of Limitations begins to run from the date that medical malpractice occurs, instead of when a person can reasonably know about the malpractice or has discovered that the malpractice occurred.

A few weeks ago the Daily News published a story about the plight of Marilyn Veritzan, a mother of three from Nassau County. Marilyn was involved in a car accident in 2009 and was brought to the county hospital for treatment. A CT scan of her spine showed a density in her lung, unrelated to the accident. The doctor treating her at the hospital ordered a follow up chest x-ray, which was normal. Marilyn was told that she was fine and could go home to her family. However, unknown to Marilyn, a chest x-ray was the incorrect test to determine what the density on her lung really was. Marilyn later learned that a CT scan of her lung was the test that should have been performed to properly diagnose her lung condition.

Sadly, by June 2010 Marilyn had been diagnosed with stage 4 cancer with three masses in her lung instead of the one mass they saw in the hospital after her accident in 2009 when they said she was fine. Had the correct test been done initially, her diagnosis would have been stage 1 instead of incurable stage 4.

When Marilyn finally found out that the hospital failed to order the correct test, she consulted an attorney to see what could be done about the malpractice that was committed. This is when she learned about the harsh and unfair malpractice law in New York. It was too late for Marilyn to bring a lawsuit against the county hospital to hold them accountable for their malpractice. This is because the Statute of Limitations in New York for malpractice runs from the date that the malpractice is committed, not from when the patient learns it was committed. Further, since it was a municipal hospital she only had one year and 90 days to start a lawsuit, and she was three months late. Had it been a private hospital she would have had two and one half years to start a legal action. More importantly, if New York had a "Date of Discovery" rule like almost every other state, Marilyn would have been able to obtain the compensation that her and her family deserve.

In light of her situation and many others like hers, Assembly Speaker Sheldon Silver and Governor Cuomo have indicated that they will review the present malpractice laws to consider adding a "Date of Discovery" rule. Let's hope they do.