The Cancer Clock - Steven Ferber Discusses Medical Malpractice

ISLANDIA, N.Y. - Aug. 7, 2017 - PRLog -- Victims of malpractice and their heirs who discover the error long after it occurred typically can't sue, even if it's clear that the mistake contributed to the disease or death. That could soon change, at least for those suffering from cancer.

The New York State legislature has passed a bill that would give victims of medical malpractice with cancer more time to sue, something supporters say will help wronged patients get compensation, while critics worry it will create a new double standard.

Lavern's Law would let cancer victims sue up to two and a half years -- and one and a half years for state hospitals -- after they discover the malpractice.

That's a huge change from current regulations, which start the clock at the time of treatment rather than discovery.

"It didn't change the amount of time for any statute of limitations," said Steven Ferber, a partner at Davis & Ferber, a law firm in Islandia. "But it changes when it starts to run."

The Medical Society of the State of New York, based in Westbury, opposes the change, saying it could lead to more litigation, increase malpractice insurance and, potentially, healthcare costs.

"We would like the governor to veto it and for there to be comprehensive liability reform," said Dr. Charles Rothberg, president of the society and an ophthalmologist in Patchogue. "We'd like there to be some give and take."

The legislation is named after Lavern Wilkinson, a single mother in Brooklyn who died of lung cancer in 2013 after it went undiagnosed despite X-rays taken at Kings County Hospital that indicated its presence.

Wilkinson was unable to sue, since by the time she realized she had cancer, the statute of limitations had expired.

"I've had clients come to me who found out four years after an X-ray when the cancer was not diagnosed that they have stage four cancer," Ferber said. "It was too late for me to do anything. That statute of limitations had already run out."

Rothberg, however, said singling out cancer creates a situation where those with other diseases will be treated differently under the law. Ferber said that's simply a reason to start the clock ticking at discovery for all medical malpractice cases.

"How is a patient supposed to know when something is missed when you're told nothing's wrong?" Ferber asked. "That's the problem."

Rothberg, however, said the bill doesn't address the key issue that Wilkinson's estate faced. Patients have only 15 months to bring action against public hospitals, rather than two and a half years for other providers.

"If she were treated anyplace else, the statute would have been longer and she would have been able to sue," Rothberg said. "Why didn't they just expand the statute in the public hospitals, where the statute is defective?"

Ferber said starting the clock ticking at discovery would make it easier to sue both public and private hospitals. And he said the double standard for suing public and private entities reaches far beyond hospitals.

"It's any subdivision of a municipality," Ferber said. "It's the way it is for all cases with respect to government entities."

Under the concept of government immunity, municipalities, public hospitals, schools, parks, public buildings and streets have shorter statutes of limitations than private entities.

"If I get injured on your property, I have three years to start a law suit," Ferber said, noting it's far less for a fall on a public street.

Doctors worry Lavern's Law could increase already high malpractice rates, which could hurt medical care. The society said starting the clock at the date of discovery could hike premiums by 15 percent.

The society said that in Nassau and Suffolk, premiums already are more than $338,000 for neurosurgeons and $141,000 for orthopedic surgeons.

"Who should suffer?" Ferber asked. "Should it be the patient who leaves three children because they died as a result of a doctor failing to see what's on an X-ray? Or should it be the doctor who pays higher medical malpractice premiums?"

Rothberg worried this could open the floodgates to a wave of litigation. But Ferber said attorneys, who typically work on contingency, filter out cases.

"Medical malpractice cases are defended to the hilt," said Ferber. "We are extremely selective. We don't take frivolous cases or cases where damages are minimal."

He said he sees "plenty of cases where there was a mistake, but I say it's not a case worth taking," since the litigation cost can outweigh possible recovery.

Lavern's Law also only would allow cases to be filed dating back seven years, putting the brakes or at least a limit on litigation. Rothberg said practicing defensive medicine could lead to unnecessary tests, potentially harming patients.

Patients with blood in their urine today, for instance, typically would not be sent for extensive tests, unless the blood persists. Rothberg said Lavern's Law could potentially lead "to unnecessary tests, including some that cause damage."

Ferber, however, said defensive medicine can mean physicians are being cautious. In most cases he takes, doctors failed to act.

"Everybody talks about too much defensive medicine," Ferber said. "When I take a case, it's because the medicine was not defensive enough. They were too casual and missed things terribly."

While this bill could lead to a major change, it's just one battle in a bigger fight over medical malpractice.

Federal legislation calling for a $250,000 cap on damages for pain and suffering recently passed the House of Representatives.

"Two hundred and fifty thousand dollars now for somebody who lost a limb and will never walk again? It's disgraceful," Ferber said. "How do I tell my client who lost a leg as a result of medical malpractice that their leg is only worth $250,000?"

Ferber and Rothberg both agree that parties in medical malpractice suits should be required to identify their expert witnesses, which isn't the case now in New York State.

Ferber, however, said both sides today must identify experts' specialty, year they graduated medical school, when they were board certified, hospitals where they practice and other information.

"Thirty seconds later, we plug it into a data base, so we always know who the expert is," Ferber said. "We get copies of prior testimony, prior lawsuits. We never go into these cases without knowing who they are."

There already are provisions to regulate how much medical malpractice attorneys in New York State make on cases. They can earn up to 30 percent for the first $250,000 and lower amounts for larger sums.

Attorney fees on medical malpractice verdicts exceeding $1.25 million in New York State are capped at 10 percent.


Davis & Ferber, LLP
http://www.davisferber.com