Horrific medical malpractice case causes legislators to rethink statute of limitations

March 4, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

Kings County Hospital. Photo data copyright Google Maps 2017

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Lavern Wilkinson went to Kings County Hospital complaining of a cough. The doctors took an x-ray and told her it was merely asthma.

Two years later, it was discovered that the x-ray showed evidence of lung cancer. With her cancer at an incurable stage 4, Wilkinson has been told she only has six months to live. To add insult to injury, Wilkinson has no recourse to sue for her misdiagnosis.

A 1975 New York state law places a severe time limit as to when an individual can sue a hospital owned by a municipality – such as Kings County.

The statute of limitations is twofold. First, a victim of medical misdiagnosis or malpractice has 90 days from the date of injury to notify the city of his/her intention to sue. Secondly, the suit must be filed within 15 months of the injury.

In order to bring a claim against Kings County Hospital for its misdiagnosis of her cancer, Wilkinson would had to have notified the city that she was going to sue within 90 days of her initial x-ray — an almost impossible feat if one is not aware that he or she has been misdiagnosed.

For privately owned hospitals, however, the statute of limitations begins to run when the patient became aware or should have reasonably become aware of their misdiagnosis, and there is no requirement that the patient notify the hospital of his or her intention to sue prior to actually filing a lawsuit.

“I don’t know what prompted the different statues between the city and private entities,” noted Brooklyn attorney Jordan Tucker. “Medical malpractice is different than your run-of-the-mill tort, but medical practice is the same in a private hospital as it is in a city one.”

Noted medical malpractice attorney Judith Livingston explained that the basic difference between medical malpractice and the average personal injury case rests in the knowledge of an injury.

“In order to know that you have a medical malpractice case, there are so many details that patients are not made aware of,” said Livingston. “In a car accident case, you know you have been injured. In cases of medical malpractice, the injuries could have occurred while you were under anesthesia or be the result of a misread pathology report.”

Given the difficulty of identifying an injury, many attorneys find the statute of limitations exception for city-owned hospitals disconcerting.

“In general, it is very difficult to prosecute medical malpractice cases because they are time-consuming and very costly,” said Jack Kanzler from Finz & Finz, P.C.

“Medical malpractice cases are taken on contingency. Lawyers spend a lot of time and money screening cases to ensure that there is a valid case,” Livingston noted. Coming up against the statute-of-limitation exceptions for injuries incurred at city hospitals further hinders the work of attorneys and victims.

“It is a very large obstacle,” said attorney Robert Goldberg of Peters Berger Koshel & Goldberg P.C.

“Often, victims are not aware of their injuries or they just want to wait and see if they get better,” said Daniel Minc, Esq. Even if a victims seeks out an attorney in time, “it is hard to get medical records in time,” he said.

“You can request the medical records, but there is no law that forces the hospital to give you the records in time for you to determine if there is a valid case,” Minc added.

There are ways that attorneys can get around the statute of limitations, but those options are very slim. “You can request the court for an extension of time to file the initial notice of claim,” Livingston said. “You need a valid reason, and even then there is still the fact that you must file the case within 15 months of the actual injury not knowledge of the injury.”

State Assembly Speaker Sheldon Silver may look to level the playing field. Michael Whyland, a spokesperson for Silver, said that since Silver became aware of Wilkinson’s case, he supports a bill that would start the statute of limitations at the moment a patient learns of a medical error.

“The speaker thinks the issue has merit and will review it with the members of the Democratic conference,” Whyland told the New York Daily News.

“The creation of a special statute of limitations for city hospitals gives the city an advantage,” said Goldberg. “I would support something that would extend the time for valid cases to be brought.”

Shifting the balance of advantage must be weighed against the need for efficient justice. With a longer statute of limitations, there is a likelihood that evidence could be lost and witnesses could forget or pass away. Also, the interest of the medical community must be taken into consideration.

The Daily News reports that health care industry officials say changing the law will drive up New York’s already sky-high medical malpractice premiums by 16 to 25 percent, forcing more doctors to either retire or leave the state.

For Kanzler, the issue is not about malpractice premiums but rather “why should victims of medical malpractice at the hands of a city hospital be given a shorter period of time to prove her case?”

Livingston is looking forward to a hearing on the proposed legislation. “The current law is unfair and overly harsh,” she said. “I think that all plaintiff medical malpractice attorneys would strongly support this legislation because the present system is an injustice to the victims whose lives have been destroyed.”

Unable to file a lawsuit against Kings County Hospital, Wilkinson accepted a settlement of $625,000 from the city.

–Rob Abruzzese contributed to this article.