Lavern’s Law Amendments Mitigate Bad Bill’s Impact on Hospitals

January 29, 2018

New York Governor Andrew Cuomo, Senate Majority Leader John Flanagan (R-Smithtown), and Assembly Speaker Carl Heastie (D-Bronx) have announced a three-way agreement on amendments to “Lavern’s Law,” a GNYHA-opposed bill that enacts a discovery statute for cancer-related medical malpractice cases.

Governor Cuomo had directed his counsel to work with stakeholders on amendments to the bill, which were introduced in the Senate and Assembly late Friday night. GNYHA was deeply involved in discussions with the Governor’s counsel on amendments to minimize the significant financial impact the bill would have on member hospitals.

The amendments address a number of concerns expressed by GNYHA on behalf of its members. First, the original bill’s extraordinary “revival” provision is gone. The original bill would allow plaintiffs to revive already-expired claims based on negligence that occurred up to seven years prior to suit being filed. The chapter amendment replaces this provision with a much narrower and simpler version that would allow any cancer claims that expired, under existing law (no discovery rule), within the last 10 months before the bill is signed to be resurrected and filed up to six months after the bill is signed. This should save up to six years of exposure on claims that could have been revived, plus the costs of having to litigate over the meaning of the original revival provision, which was almost indecipherable.

Second, the chapter amendment deletes the original “effective immediately” language and replaces it with language that makes the discovery rule applicable to negligence occurring after the effective date, plus any accrued claims that have not yet expired as of the date of signing. Thus, the past exposure would be tied to the applicable statute of limitations for the defendant—2.5 years prior to the effective date for voluntary hospitals, as opposed to the original bill’s seven years.

The chapter amendment also fixes the original bill’s ambiguities and oddities, including:

  • making clear the discovery rule applies only to cancer cases
  • reinstituting the existing 2.5-year statute of limitations for non-cancer cases that had been inadvertently omitted in the original legislation
  • preventing the discovery rule from being applied to cases that fall under another, existing exception to the statute of limitations

The amendment does not change the fact that, prospectively, plaintiffs will have 2.5 years from the date of discovery to file cancer claims, provided the negligence occurred no more than seven years prior to the suit being filed. GNYHA had hoped to narrow those timeframes as well, but was not successful on that front.

The Legislature is expected to vote on the amendments on Tuesday and the Governor will sign the underlying bill and amendments.

In a statement about the three-way agreement, GNYHA President Kenneth E. Raske said:

“I would like to thank the Governor for his hard work and his serious attempt to find balance and equity for all parties. While this is a challenging issue given the medical liability environment in New York, the health care community is dedicated to fairness for all consumers. I applaud the Governor for striking a balance that will truly help New Yorkers.”