New York lawmakers have, for the second year in a row now, shut down a bill that would have given medical malpractice victims a larger window to bring claims to court. Lavern’s Law, as the measure was known, would have established a statute of limitations for medical malpractice claims which begins tolling when the patient learns of the error.
Under current law, medical malpractice claims must be filed within 2 ½ years from the date the action or omission occurred or from the end of continuous treatment by the party who is being sued. The problem for patients in some cases of medical error is that it isn’t always immediately obvious that something went wrong in the course of medical or surgical care. Nor is it always easy to determine when exactly the error occurred when it does become obvious that something went wrong.
Between patients and their providers, it is providers who have the advantage when it comes to information. Not only do providers deliver the care that may or may not have been negligent, they also possess medical records and records of any communications that took place with respect to medical care which may or may not have been negligent.
In any case of medical error, it is the medical staff and the hospital which has access to the details of the incident, so it isn’t always possible for a patient to know when his or her condition is the result of medical negligence or when that negligence exactly occurred.
In our next post, we’ll look briefly at how litigation can help level the playing field in terms of information about an incident of medical error.