A Missed Cancer Diagnosis: How Long You Have to Sue in New York

New York gives patients less time to bring a medical malpractice case than almost any other kind of injury claim. For one category of cases, a missed cancer diagnosis, the law was changed to make that deadline fairer.

The general rule

A medical malpractice action in New York generally must be started within two years and six months of the act or omission complained of (CPLR 214-a).

The clock usually starts on the day of the error, not the day the patient learns of it. For most kinds of malpractice, a patient who discovers the mistake three years later is out of time.

The problem with cancer cases

A missed cancer is exactly the kind of error a patient cannot know about. A scan is misread or a biopsy result is not followed up. The patient is told everything is fine and goes home. By the time the cancer is found, sometimes years later, the old deadline had often already passed.

Lavern's Law

In 2018, New York amended the statute. Where the claim is a negligent failure to diagnose cancer or a malignant tumor, the two years and six months run from the later of:

• the date the patient knew, or reasonably should have known, of the negligent failure to diagnose and that it caused injury, or
• the date of the last treatment, where there has been continuous treatment for the condition.

There is an outer limit. The action cannot be started more than seven years after the negligent act or omission, no matter when it was discovered.

The law applies only to failures to diagnose cancer or a malignant tumor. It does not extend the deadline for other kinds of misdiagnosis.

Two other exceptions worth knowing

• Continuous treatment. If you continued to be treated by the same provider for the same condition, the two years and six months generally run from the end of that course of treatment.
• Foreign objects. If a surgical instrument, sponge, or similar object was left in the body, the action may be started within one year of the date it was discovered, or of the date of facts that would reasonably lead to its discovery.

Public hospitals

Claims against public hospitals are different. A claim against a hospital run by a city, a county, or a public benefit corporation generally requires a notice of claim within 90 days and a lawsuit within one year and 90 days. For cancer cases, Lavern's Law provides that those periods also run from discovery, subject to the same seven-year limit (CPLR 203(g)(2)). The ordinary 90-day rule still applies to every other kind of claim against a public hospital. A claim against a State-run hospital belongs in the Court of Claims, which has its own short deadlines.

What "should have known" means

The clock can start before anyone tells you outright that a mistake was made. If you learn that an earlier scan showed something that was not acted on, or a new doctor asks why a finding was never followed up, a court may later decide that was the moment you should have known. Waiting for certainty is risky.

What to do

1. Request complete copies of your records, including the images themselves, not only the reports.
2. Write down the dates: the earlier tests, what you were told, and when the diagnosis was finally made.
3. Speak with a lawyer promptly. A malpractice case cannot be filed without a physician's review, and that takes time.

If you or a family member was diagnosed with cancer after earlier tests were read as normal, call the office. For more, see Medical Malpractice.