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Lavern Wilkinson

The New York state Senate and Assembly brought their current legislative sessions to an end early Saturday morning. There was at least one piece of proposed legislation that wasn’t taken to a vote, making it the second year in a row that this particular bill has died in the state legislature. The bill, known as Lavern’s Law, would change the way medical malpractice cases are handled. Instead, NY once again turned its back on medical malpractice victims.

The bill in question is known as Lavern’s Law, so named after Lavern Wilkinson. Ms. Wilkinson died in 2013 at 41. The Brooklyn-based mother left her then-15-year-old daughter, an autistic girl needing 24/7 care, without a parent. Micalia, Ms. Wilkinson’s daughter is now 18 and is cared for by her aunt, Gloria O’Connor. Ms. Wilkinson died from a curable type of lung cancer due to a misdiagnosis by doctors at Kings County Hospital.

Gloria O'Connor, right, with her autistic niece, Micalia,18. Image courtesy of Debbie Egan-Chin New York Daily News.
Gloria O’Connor, right, with her autistic niece, Micalia,18. Image courtesy of Debbie Egan-Chin New York Daily News.

Under the current law, the time frame in which Ms. Wilkinson could have filed suit for medical malpractice began at the time of the misdiagnosis, not when Ms. Wilkinson discovered it. By the time she found out about the misdiagnosis, the time frame to file that suit had ended. Lavern’s Law would change this to reflect the more humane laws of 44 other states by starting that time frame when the patient discovers the malpractice. This is known as a date of discovery law and New York, along with five other states, doesn’t have it on their books.

A GOP official said the issue was discussed in detail by the Republicans who control the state Senate. The unnamed official also said no consensus could be reached. Senate GOP Deputy Majority Leader John DeFrancisco threw his support behind Lavern’s Law. However, it wasn’t enough to overcome the greed of the medical establishment.

Sen. John DeFrancisco R-Syracuse was a strong backer of the bill. Image courtesy of Hans Pennink/AP.
Sen. John DeFrancisco R-Syracuse was a strong backer of the bill. Image courtesy of Hans Pennink/AP.

The medical establishment has argued that several of the states with date of discovery laws also cap pain and suffering awards as well as limiting total damages, something the state didn’t want to do. Such caps, popularly known as “Tort Reform,” favor the medical establishment at the expense of the patients. The establishment is powerful and very protective of its deep pockets. In other words, it’s another “Profits before patients” mindset.

The state Assembly passed Lavern’s Law last year, but it was defeated in the Senate. This year, the Assembly didn’t do a thing regarding this important bill, choosing instead to wait to see what the Republican-controlled Senate would do about it.

The net result is that New York is still without a date of discovery law for medical malpractice, which means patients continue to be at a greater risk of being denied access to the justice system when doctors err in their diagnoses and treatments. It puts the responsibility on the patients in that patients must now second-guess their doctors, get second/third/fourth, etc. opinions, hopefully have a doctor as a friend or family member or be doctors themselves, in case something goes wrong.

It’s either that or blindly trust the medical establishment and run the risk that, if the establishment messes up, the patients must simply live – or die – with the consequences. Profits before patients robbed Ms. Wilkinson of access to the justice system. The justice system couldn’t have saved her life, but if justice had been done and Ms. Wilkinson had been given her day in court, perhaps Micalia’s life and that of those who care for her could have been made a little easier via a damages award.

Instead, not only the system fail both Ms. Wilkinson and Micalia, there is no money to help with Micalia’s round-the-clock care, nor was Ms. Wilkinson fairly compensated for her doctors’ malpractice and the pain and suffering she must have experienced knowing that she was going to leave her child behind despite that fact that it could have been prevented.

Way to go New York! I’m glad that the state’s lawmakers will be able to go about their business now that the current session is over, knowing they served their chosen masters – the medical establishment and its lobbyists – instead of the people for whom they should be working.

Source:

Bill to help medical malpractice victims fails again in N.Y. legislature

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