Patient Advocates Urge Closure Of Malpractice Loophole

NEW YORK (CBSNewYork) -- They are stopping a clock no one knew was even ticking.

Patient advocates say New York's antiquated malpractice laws make it hard for some cancer patients to hold doctors and hospitals accountable for missing obvious warning signs, CBS2's Lou Young reported Monday.

The clock ran out on Jennifer Estrella when she was still under the knife. Doctors told her the liver cancer they found and cut out earlier this year should have been detected back in 2012 during tests for an unrelated ailment.

"They knew about the mass because they had a CT scan. They saw the mass. They just never told me about it," Estrella said.

The mistake nearly killed her, but New York State law says she can't sue because the mistake was made too long ago.

"If she were in New Jersey, just a few miles away, she wouldn't be in this dilemma," attorney Victoria Wickman said.

New York is one of only five states that start the expiration clock for medical malpractice suits at the time the mistake is made, and not when the misdiagnosis is discovered, Young reported. Patient advocates say that's unfair because usually no one knows a mistake is made until the patient gets very sick. In the case of many cancers that can take years.

Michael Dreifuss lost his wife to a misdiagnosed cancer. Finding out he had no legal redress made him start pushing for a change in the law.

"By the time it was communicated it was stage 4," he said. "Who knows the clock started when they missed it? How do you know they missed it?"

The medical community says New York's malpractice system needs a complete overhaul. Making it easier to sue, they insist,doesn't help

"It's raising the cost without solving many of the fundamental problems," said Michael Goldstein of the New York Medical Society.

Gov. Andrew Cuomo said he's convinced the law needs to change and added he'll sign it if it gets to his desk. The so-called "Lavern's Law" is named for Lavern Wilkinson, a Brooklyn woman who died of a misdiagnosed cancer in 2012, Young reported.

The Lavern's Law bill has already passed in the state Assembly, but backers insist it remains bottled up in committee. Backers insist they have enough votes for passage if they can get it to a vote, Young reported.