Supreme Court, Queens County, October 6, 2023

Wagner, Doman, Leto & DiLeo, P.C. (Theresa M. Sabella and Diana D'Alessio DiLeo of counsel) for defendant.

Buttafuoco & Associates (James S. McCarthy of counsel) for plaintiff.

Defendant's motion to dismiss plaintiff's complaint pursuant to CPLR 3211 (a) (5) and 214-a is denied, and plaintiff's cross-motion to strike defendant's affirmative defense of statute of limitations is granted. Plaintiff commenced this medical malpractice action by filing a summons and complaint on May 10, 2022, and defendant filed an answer with affirmative defenses on June 2, 2022. It is noted that plaintiff previously moved for the requested relief, and the motion was denied without prejudice by the Honorable Peter O'Donoghue dated May 2, 2023.

Defendant argues that dismissal is warranted, as plaintiff failed to timely commence the action within the 2� year statute of limitations afforded to medical malpractice cases. He argues that plaintiff's complaint alleges the medical malpractice stemmed from medical care defendant provided to plaintiff from November 18, 2018, through December 2, 2018, in that defendant allegedly failed to diagnose plaintiff's vaginal cancer. Defendant argues that plaintiff should have reasonably known that the MRI taken on December 2, 2018, showed an [*2]enhancing mass between the anterior vagina and posterior urethra and therefore the tolling provisions of "Lavern's Law" would not apply. Defendant presents plaintiff's deposition testimony, where she admitted that defendant told her on November 19, 2018, to return in one month after the MRI, or January 2, 2019. He argues that had plaintiff returned in January, she would have been notified of the MRI results, and would have reasonably known about the vaginal cancer, and therefore even using that date, plaintiff's complaint was untimely filed. However, defendant argues that plaintiff terminated the physician-patient relationship with her, and had plaintiff requested a copy of the medical records, plaintiff would have seen the MRI findings of a mass that required further workup.

Defendant further argues that unlike the patient for whom "Lavern's Law" was named, plaintiff had been suffering from the same medical condition for over seven years, in that she had numerous fibroids for which she was treated by surgical{**81 Misc 3d at 371} removal, blood transfusions, a diagnosis of severe anemia and recommendations for a hysterectomy. Defendant further argues that without the tolling provision, plaintiff should have commenced the action within 2� years from the MRI report, or by July 2, 2021, and as it is undisputed that the complaint was filed on May 10, 2022, the action is untimely and should be dismissed.

Plaintiff opposes the motion, arguing that defendant failed to submit evidentiary proof in admissible form to warrant dismissal. Plaintiff argues that reliance on defense counsel's affirmation is insufficient to establish entitlement to dismissal, as it is not supported by competent evidence in admissible form, such as an affidavit of merit. Plaintiff further argues that dismissal is not warranted, as plaintiff's time to commence the action is tolled under "Lavern's Law." She presents evidence that she called defendant's office to obtain the MRI results, but was informed defendant was on maternity leave first, and then defendant no longer worked at the facility. Plaintiff argues that she did not obtain the results of the December 2, 2018 MRI until November 2021, and therefore the complaint is timely filed. Plaintiff argues that defendant's medical records are insufficient to establish entitlement to dismissal, as they merely indicate someone wrote on the MRI report that a message was left for plaintiff to contact office on December 13, 2018. As defendant failed to present an affidavit of merit from the individual who wrote the note or who allegedly called plaintiff, defendant cannot establish plaintiff reasonably knew about her diagnosis. Therefore, since plaintiff commenced the action within 2� years of discovering her cancer diagnosis in November 2021, the action is timely and defendant's motion should be denied.

CPLR 214-a states that medical malpractice and lack of informed consent causes of action, including negligent failure to diagnose cancer, must be commenced within 2� years of the negligent act or omission. (See Lohnas v Luzi, 30 NY3d 752 [2018].) However, this statute was amended by "Lavern's Law," a legislature enactment signed by then-Governor Cuomo on January 31, 2018, which extended the medical malpractice statute of limitations in cases involving failure to diagnose cancer to the date at which plaintiff discovered or reasonably should have known about the act or omission that caused injuries. Under "Lavern's Law" a plaintiff may obtain a tolling of the statute of limitations, in that an action based upon the{**81 Misc 3d at 372} alleged negligent failure to diagnose cancer or a malignant tumor may be commenced within two years and six months of the later of either (1) when the plaintiff knew or reasonably should have known of such alleged negligent act or omission and knew or reasonably should have known that such alleged negligent act or omission has caused injury, provided that such action shall be commenced no later than seven years from such alleged negligent act or [*3]omission, or (2) the date of the last treatment where there is continuous treatment for such injury, illness or condition. (CPLR 203 [g] [2]; Ford v Lee, 203 AD3d 456 [1st Dept 2022].)

The issue presented is a novel one, as it seeks an interpretation of the language in "Lavern's Law" with regard to when a patient reasonably should have known of an alleged negligent act or omission in order to toll the statute of limitations.

Contrary to defendant's contention, "Lavern's Law" is applicable to this action, and does not require the court to consider when plaintiff could have reasonably known that she had a cancerous mass. Rather, the statute requires only a consideration of when plaintiff knew or reasonably should have known of an alleged negligent act or omission by defendant, and when plaintiff knew or reasonably should have known that the negligent act or omission caused an injury. The focus and intention of the language is on the date when a plaintiff became aware of malpractice, and not necessarily when she became aware of a medical condition. While in many cases this interpretation may be a distinction without a difference, it is important to recognize the purpose of the law to ameliorate the relatively short statute of limitations applicable to medical malpractice actions when there is an issue of failure to diagnose, recognizing that circumstances arise when a misdiagnosis or failure to diagnose is not discovered through no fault of the patient until a period beyond the 2� years from when the alleged malpractice occurred.

This interpretation is supported by the justification language in the Senate bill, which states that "[t]his bill would remove this significant loophole in the law, which allows a patient's rights to expire without the patient even knowing that she had any rights." (Senate Introducer's Mem in Support of 2017 NY Senate Bill S6800, incorporated in L 2017, ch 506.) The legislature was seeking to correct what was considered a "loophole" for those victims of a medical malpractice misdiagnosis or failure to diagnose, whose injury is often discovered well after{**81 Misc 3d at 373} the statute of limitations has expired. (2017 NY Senate Bill S6800.) This interpretation is also supported by Assembly Speaker Carl E. Heastie's news release, in which Speaker Heastie stated "[w]hen it comes to treating life-threatening illnesses, we know that time is of the essence . . . . Under this legislation, individuals who have suffered the consequences of a missed diagnosis will be given the opportunity to seek justice." (Assembly Passes Legislation to Provide Legal Remedy For Medical Malpractice For Negligent Failure to Diagnose Cancer, 2018 NY Assembly News Release [Jan. 30, 2018] [internal quotation marks omitted].) Additionally, Assemblymember Helene Weinstein, one of the bill's sponsors, stated "[w]ithout this legislation, cancer patients are at continued risk of having their rights expire before they even discover malpractice." (See id.)

Therefore, the key consideration is when plaintiff knew or should have known of a negligent act or omission by defendant, and not when she learned that she had cancer. Based upon the plain language of the statute and the legislative intent, "Lavern's Law" is applicable to plaintiff's claim, as there is a valid cause of action for medical malpractice as to whether defendant departed from good and accepted medical standards in failing to diagnose plaintiff's cancer, and not timely providing plaintiff with the MRI findings, and whether the departures proximately caused plaintiff's injuries. Under the facts presented, and in viewing them in the light most favorable to plaintiff, the cause of action against defendant did not accrue until November 2021 when plaintiff discovered she had a cancerous mass that had been identified in the December 2018 MRI report. Plaintiff's claim of failure to diagnose vaginal cancer was not apparent to plaintiff until she was diagnosed by Dr. Sample in November 2021, and therefore the statute of limitations is tolled in accordance with "Lavern's Law." Defendant's argument that plaintiff should have done more to obtain the MRI findings may be a valid defense at trial, but [*4]for purposes of applying "Lavern's Law," has no place in this court's analysis.

Plaintiff's cross-motion to strike defendant's affirmative defense of statute of limitations is granted, based upon the above analysis. It is noted that defendant may continue to assert a defense with regard to plaintiff's alleged failure to follow up on the MRI report, and failure to return to defendant's medical office in January 2019 to obtain the results, but is stricken from asserting a defense that the action is time-barred.{**81 Misc 3d at 374}

Accordingly, defendant's motion to dismiss plaintiff's complaint pursuant to CPLR 3211 (a) (5) is denied, and plaintiff's cross-motion to strike defendant's affirmative defense of statute of limitations is granted.