Patient Advocates Urge Closure of Medical Malpractice Loophole.

To succeed in a medical malpractice suit, you must prove that a doctor or other medical professional made a mistake while treating you and that you were harmed because of that mistake. This mistake can include an act or a failure to act, otherwise known as an omission. There is a certain standard of care that you should expect when interacting with your doctors. If that standard of care is breached, you may be entitled to damages for the pain and suffering and other injuries that the breach caused.

However, in certain states, including New York, a loophole prevents many patients from filing medical malpractice suits. A medical malpractice lawsuit generally has a statute of limitations attached to it whereby the lawsuit cannot be filed after a certain amount of time. Usually, the expiration clock starts to run when a misdiagnosis is discovered. Nevertheless, in New York and five other states, the expiration clock starts to run from the date when the mistake is made. This distinction concerns many patient advocates, who claim that many victims of medical malpractice are barred from ever filing lawsuits for a reason they were not even aware existed.

For example, Jennifer Estrella was diagnosed with liver cancer this year. However, her doctors have admitted that the cancer should have been detected and removed back in 2012. Although her doctors realized that something was wrong back in 2012, they did nothing about it. But because the mistake was made three years ago, Estrella has no legal recourse.

According to CBS News, the laws in New York are unfair because mistakes are usually not detected until someone is very sick. This disproportionately affects cancer patients. “Lavern’s Law,” named after Lavern Wilkerson, a Brooklyn woman who died of a misdiagnosed cancer, is currently being debated in the New York State legislature. It would change the law in New York so that the statute of limitations starts running when the medical mistake is discovered, not when the mistake is made.

Have you or a loved one suffered injuries because of the negligence of a doctor or medical professional? If so, please call 617-787-3700 now to speak with one of our expert Massachusetts medical malpractice attorney specialists.

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