Missed or Delayed Cancer Diagnosis in New York: Your Rights Under Lavern's Law

A routine mammogram shows an area the radiologist flags for follow-up, but no one schedules the next test. Another patient mentions a lump during an annual physical and is told it's nothing to worry about.

 

Months later, both learn they have cancer that may have been treatable at an earlier stage. Situations like these happen more often than many people realize. New York law gives patients specific protections when a diagnosis is missed or delayed.

 

How Cancer Diagnoses Get Missed

 

Most delayed diagnoses don't come from a single dramatic mistake. They often stem from breakdowns in routine care, including imaging that was misread or never reviewed, abnormal test results with no follow-up, symptoms that were dismissed without testing, and referrals to specialists that never happened. In some cases, results are sent to the wrong provider or never reach the patient at all.

 

Not every delayed diagnosis is malpractice. A case may involve malpractice when a provider failed to meet the accepted standard of care and that failure caused the patient harm.

 

What Lavern's Law Changed

 

Before 2018, the deadline to file a medical malpractice claim in New York generally began running on the date of the error, subject to certain exceptions. Patients whose cancer went undetected for years could lose their right to file before they ever knew something had gone wrong.

 

Lavern's Law (CPLR Sec. 214-a) took effect in January 2018 and changed this for cases involving a failure to diagnose cancer or a malignant tumor. In these cases, the filing clock generally starts when the patient knew, or reasonably should have known, about the error and the resulting injury. The patient then typically has two and a half years to file, but no more than seven years can pass from the original error. Claims involving a public hospital can carry different and much shorter notice requirements, so it's important not to wait.

 

Understanding "Loss of Chance"

 

Many delayed diagnosis cases center on what the delay cost the patient. New York courts have allowed claims where a provider's negligence reduced a patient's chance of a better outcome, such as longer survival or less aggressive treatment. This is often called "loss of chance." Proving it typically requires medical experts who can explain how the cancer likely progressed during the delay and how earlier treatment may have changed the result.

 

Records to Request

 

If you suspect your diagnosis was delayed, gathering your records early can help. Useful documents include imaging studies, radiology reports, pathology reports, referral notes, and messages exchanged through your patient portal. You're entitled to request copies of your records from each provider involved in your care.

 

Talk With Our Team

 

A missed diagnosis can leave you facing difficult treatment decisions along with unanswered questions about your care. We are always here to help review what happened and explain the options available to you under New York law.

 

Contact us today for a confidential case review.

 

This post is for general informational purposes and is not legal advice.