The law that applies to your claim
Lavern’s Law — the discovery rule
For a failure to diagnose a cancer or malignant tumor, the two-and-a-half-year period runs from when the patient knew or reasonably should have known of the misdiagnosis, rather than from the missed reading itself — subject to an outer limit from the date of the act. It exists because the previous rule expired claims before the patient had symptoms.
The injury is usually upstaging
The harm is rarely that cancer existed. It is that a treatable stage became a less treatable one: a curable early tumor that metastasized during the delay, a lumpectomy that became a mastectomy, a resection that became palliative care. Damages track that difference.
Proving it takes staging evidence
Experts reconstruct what the tumor looked like at the missed opportunity — from the prior imaging or slides — and testify to what stage-appropriate treatment and survival would have been. That comparison is the case.
Where the miss happens
- Radiology — a lesion visible in hindsight on a prior mammogram, chest CT or scan that was read as normal
- Pathology — a biopsy misread as benign, or an inadequate specimen never repeated
- Screening failures — screening not offered at the recommended interval given age and risk
- Results never communicated — an abnormal finding that reached no one
- Symptoms attributed to something else — rectal bleeding called hemorrhoids, persistent cough called bronchitis
- Follow-up never arranged — an indeterminate nodule with a recommended interval scan that never happened
Get the prior imaging and the slides
The single most important evidence usually already exists: the earlier film or the earlier slide. A radiologist can review the original study and say whether the lesion was visible and should have been reported. A pathologist can re-examine the block.
These are retained on schedules that vary by facility, and requesting them early — the actual images and slides, not just the reports — matters. A report says what was seen; the film shows what was there.
Related
For the general framework of diagnostic error, see misdiagnosis. Where a delayed cancer diagnosis resulted in death, the estate may also bring wrongful death and survival claims, which carry their own deadlines.
How long you have to act
- Three years from the date of the accident for most negligence claims (CPLR §214).
- Two years for wrongful death (EPTL §5-4.1).
- 90 days to serve a notice of claim where a city, county, school district, transit authority or other public body is involved (General Municipal Law §50-e), with suit generally within one year and 90 days.
The 90-day rule is the one that quietly ends otherwise strong cases. If a public entity may be involved, that is the first thing to check — not the last.
What it costs
Nothing up front. These cases are handled on contingency: there is no fee unless we win, and the consultation is free. You will be told the percentage and how expenses are handled, in writing, before you sign anything.
Common questions
I was diagnosed years after the missed scan. Am I too late?
Not necessarily. Lavern’s Law can run the period from discovery for cancer claims, subject to an outer limit. This is exactly the situation it was enacted for, so it is worth having reviewed.
The tumor was small and slow-growing.
That can strengthen a claim rather than weaken it — a slow-growing tumor was more likely visible earlier and more likely curable at that point.
My relative died before we understood what happened.
The estate may bring both the malpractice claim and a wrongful death claim. Different deadlines apply to each, so both should be assessed together and promptly.
