The anticipation is over – Governor Cuomo finally signed the bill commonly referred to as Lavern’s Law into law. CPLR § 214-a now provides an express exception to the two years and six months statute of limitations in medical malpractice actions where the action is based upon the alleged negligent failure to diagnose cancer. Cases that involve this claim may now be commenced within two years and six months of the later of either (i) when the person knows or reasonably should have known of such alleged negligent act or omission and knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than seven years from such alleged negligent act or omission, or (ii) the date of the last treatment where there is continuous treatment for such injury, illness or condition.
Forbes v. Caris Life Sciences, et al., a recent appellate division decision (fourth department) entered by the clerk on March 23, 2018, was decided after the new statute of limitations was implemented. The plaintiff was alleging medical malpractice arising from the defendants’ misdiagnosis of the decedent’s cutaneous T-cell lymphoma (cancer). Despite the new statute of limitations, the appellate court held that the claim was nonetheless time-barred. Although the court recognized that CPLR 214-a has now been amended, it also found that the legislative amendment was not effective for the dates of the alleged negligent acts and omissions in the case. Although the amendment became effective on January 31, 2018, the legislature provided that it would apply to acts, omissions or failures occurring on or after the effective date. The malpractice alleged to have occurred in Forbes occurred in 2010, before the effective date of Lavern’s Law and was thus held time-barred by the Court.
