Personal Injury & Medical Malpractice Blog

Saturday, June 25, 2016

When Cancer is Left Untreated - Do You Have Legal Recourse?

A visibly healthy woman of forty-two years received the shock of her life when a doctor reviewed her pathology records from a hospital in New York.  Apparently, "there was evidence of cancer on 10 out of 40 of the slides" that were taken at the hospital. 

A doctor previously removed a fibroid in her uterus, but left the rest of the cancer in her body.  The patient began to experience extreme back pain about two years later because the untreated cancer in her uterus, liver, and back reached stage four.  Even more heart-wrenching, by the time this information was revealed to her by the reviewing doctor, the patient was no longer eligible to sue this hospital for their malpractice under New York law.  The statute of limitations barred her claim.


Notwithstanding a physical injury, your claim might not be successful due to certain requirements under New York Medical Malpractice law.  For example, without establishing a breach of the standard of care by your physician, your claim will fail.  An attorney may need to hire an expert witness to demonstrate what the particular standard of care is in New York—the minimum threshold of responsibility owed to a patient.  Certain facts are taken into account to determine the standard of care at the time the injury occurred, such as age and diagnosis.  Furthermore, even if it is evident that there is a breach, the breach must have directly caused your harm ("proximate cause"). 

Even still, if both a breach and a direct causal connection are established, your action must come within the statute of limitations for your jurisdiction.  In New York, the statute of limitations period for bringing a medical malpractice suit  is two and a half years (although there are certain exceptions).   In the example cited above, the current law in New York barred that poor woman's claim.  This  general rule unfairly penalizes patients harmed by medical malpractice who, through no fault of their own, realize they were harmed after the statute of limitations has expired. A bill (proposed law) called "Lavern's Law" would, if passed, ensure that such patients can hold those who harmed them accountable.  Lavern's Law passed the Assembly in 2015.  The bill was not brought to a vote in the state Senate this year, but organizations such as the New York State Trial Lawyers Association remain strongly committed to the passage of Lavern's Law. 

Gladly, under certain circumstances there are exceptions to this general rule that an attorney may determine you qualify for.  For example, plaintiffs who suffer injury as a result of a foreign object being left in the body can receive an extension.  The foreign object exception allows a plaintiff to bring an action one year from his or her discovery of the foreign object.  CPLR 214–a provides that although a medical malpractice lawsuit must normally be brought within two years and six months of “the act, omission or failure complained of[,] ... where the action is based upon the discovery of a foreign object in the body of the patient, [it] may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier....".

Finally, an attorney can advise you as to the kind of damages you may qualify for:  compensatory, non-economic, or punitive damages.  If you had to take off from work or sustained high medical costs, you may be awarded compensatory damages to reimburse you for lost earnings and medical bills.  Pain and suffering would be quantified through non-economic damages.  However, punitive damages will only be awarded if your attorney can establish that the physician acted "recklessly."  This is usually proved by a showing of fraud or malice.  To ensure that you receive the maximum owed to you under the law, the circumstances of your case should be evaluated by a licensed attorney.

If you suspect you were the victim of medical malpractice, contact me immediately.

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