New York Law Opens the Door to Previously Barred Claims

A change to the statute of limitations related to missed cancer diagnoses has opened the door for claims that would have previously been barred having an opportunity to move forward.

Under New York State’s previous statute, any claim for a missed diagnosis must have been filed no later than two and a half years after the date on which the diagnosis was missed. If the claim was not filed within that time, it was barred. “The problem with this statute is clear: it charged the patient with knowing that the diagnosis was missed or taking steps to find out it was missed, which is counterintuitive,” said Joe Miklos, a medical malpractice attorney with the law firm of Silberstein, Awad & Miklos, P.C. “The new statute eliminates this by starting the clock on the statute of limitations after the person finds out about the missed diagnosis.”

What this statute also does is create a period that stretches back ten months to allow people whose claims had been recently barred to move forward with filing. “The legislature determined that if it was making this type of change, it should also go back some reasonable amount of time and reopen the door for people whose ability to make a claim was only recently lost,” Miklos said. Certainly, there are people farther back than ten months who had claims barred, Miklos said, but you have to draw the line somewhere. Those individuals falling in that ten-month period will have six months within which to file their claim.

These changes are opposed by most physician lobbying groups, and for obvious reason. They are likely to have an effect on malpractice insurance due to the increased time period during which claims can be made. One other important point: this statutory change applies only to missed cancer diagnoses, so any other missed diagnosis is not covered by this alteration.

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