In 2010, a Brooklyn resident went to the emergency department of Kings County Hospital with complaints of chest pain. Doctors ordered an EKG and chest x-ray. The EKG was normal, but a radiologist identified a suspicious 2 cm mass in Wilkinson’s left lung.

No one, however, told Wilkinson about this (it was early stage lung cancer), and instead she was sent home with advice to take ibuprofen.

Two years later, the patient returned to the same ED with a chronic cough. A chest x-ray revealed that the cancer had metastasized to both lungs, her liver, brain and spine. Her condition was terminal and she was given six months to live.


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A physician at the hospital noticed the earlier x-ray and confessed that the original diagnosis had been missed. Unfortunately, New York’s statute of limitations begins to run from the date of the malpractice, not the date of the discovery of the malpractice. (The vast majority of other states begin the statute of limitations from when the injury is discovered or should reasonably have been discovered).

By the time the patient found out about the malpractice, the statute of limitations—2.5 years in an action against a private or nonprofit hospital, but just 15 months in an action against a municipally owned hospital—had run its course and she could no longer sue. New York’s Health and Hospitals Corporation did offer the patient a $625,000 settlement, but experts agree that it was likely just a fraction of what she could have been awarded by a jury after a trial. The 41-year-old mother died in early March from lung cancer.

While there are no data on how many potential malpractice cases are affected by the New York statute, New York medical malpractice attorney Matthew Gaier, writing in The Daily News, estimates, based on his firm’s experience and anecdotal information from other attorneys, that this happens several times a year.