First Department Holds that SOL Tolling Under Lavern’s Law for Delayed Cancer Diagnosis Does Not Apply in Ford v Lee

Author: Jeffrey T. Wolber

The First Department reversed a Bronx County Supreme Court order denying the defendants’ motion to dismiss pursuant to the statute of limitations in Ford v. Lee, 2022 NY Slip Op 01414 (1st Dept Mar. 8, 2022). The case involved allegations of delayed diagnosis of lung cancer following an abdominal/pelvic CT scan on May 16, 2014, after which the reviewing radiologist recommended a dedicated chest CT scan to follow up on nodules identified in the right lower lobe. The plaintiff alleged that no follow-up chest CT scan was performed and that she did not learn of the diagnosis until October 7, 2019, when she received a CT scan from another provider.

The appeal concerned Lavern’s Law, which is a tolling provision of the statute of limitations under CPLR 214-a that applies to claims for the negligent failure to diagnose cancer. When it applies, the ordinary 2 year and 6 month SOL begins to run from the later of:

(i)   when the person knows or reasonably should have known of such alleged negligent act or omission and knows 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 omission, or

(ii)  the date of the last treatment where there is continuous treatment for such injury, illness or condition

When the law was passed, it applied to all acts or omissions occurring within 2 years and 6 months prior to the effective date of January 31, 2018, but “not before” that time. As a result, the First Department reasoned that the toll would only apply to acts or omissions occurring on or after July 31, 2015 (2.5 years before the effective date).

As such, the First Department held that plaintiff’s claims, which involved acts or omissions occurring on May 16, 2014, would not receive the benefit of Lavern’s Law, and must be dismissed as untimely.

The First Department also observed that the statute’s “revival provision” would not apply. The revival provision allowed any claim that had become time-barred within 10 months before the January 31, 2018 effective date (i.e., claims expiring after March 31, 2017) to be commenced within 6 months after the effective date. However, the plaintiff’s claim had become time-barred on November 16, 2016 (2.5 years after May 16, 2014), which was well before March 31, 2017.