Partner Edward Steinberg, presented the Legistlative Update at the Decisions seminar held in Westchester County. Each year, the New York State Trial Lawyers Association, holds a conference where attorney’s in the field of negligence law speak on varying topics and recent updates. Last month, Edward Steinberg of Leav & Steinberg was selected to speak on the legistlative changes in New York. Many of these changes are critical to helping those victims injured as a result of the negligence of others.
Among the most important changes was the change in the law called Laverne’s Law.
Lavern’s Law was recently signed into law by Governor Cuomo on January 31st, 2018, after recent Senate (53-1) and Assembly (104-8) amendments were passed on Tuesday, January 30, 2018.
With Lavern’s Law finally enacted, misdiagnosed cancer victims of medical malpractice now have 2 ½ years from the date of discovery of a missed cancer diagnosis, up to 7 years from the last date of treatment, to file a claim.
What Is Lavern’s Law?
The time to sue in Medical Malpractice cases varies from state to state. In New York it has always been 2 1/2 years from the date of injury or when the malpractice occurred. This created a limit that was often out of the hands of the injured party because they would not have known that a doctor or medical provider made a medical error until after the 2 1/2 years. The most common example is when a woman has a mammogram and is told everything is fine and to return in 3 years, to find out that the first mammogram was positive for cancer and now is advanced and untreatable. This is the story of Lavern Wilkinson.
Lavern’s Law was named after Lavern Wilkinson, a 41-year-old woman who died from a form of lung cancer. However, her illness could have been cured had her doctors not misdiagnosed the cancer. Due to medical malpractice statute of limitations laws at that time, Ms. Lavern Wilkinson’s family could not take legal action as the time to commence a lawsuit expired before she learned of her misdiagnosis. She left behind a 15-year-old child with autism who required round-the-clock care.
Lavern’s Law changes when the clock begins to run on New York’s medical malpractice statute of limitations from the time of the misdiagnosis to the time of discovery for cancer patients, only. This gives cancer victims more time to file for a medical malpractice lawsuit if their doctor misdiagnoses their illness. It is an important piece of legislation because oftentimes cancer patients, like Laverne Wilkinson, do not learn of the cancer misdiagnosis until after the statute of limitations has already expired to pursue a claim.
If you have been injured as a result of the mistake and negligence of a doctor, hospital or medical provider, you have rights. While your life and those close to you may be forever damaged, you should not be left to bear the responsibility for the effects that another’s malpractice has caused. Leav & Steinberg, LLP has experienced medical malpractice attorney’s who are prepared to investigate and fight for your rights.
CPLR 2305(D) – DOCUMENTS DELIVERED TO ATTORNEY PURSUANT TO A TRIAL SUBPOENA
While obtaining documents from parties in discovery is fairly simple by merely serving a notice on a party’s counsel, seeking documents for use at trial has been more difficult. A 2018 amendment adding CPLR 2305(d) provides that where a trial subpoena directs service of subpoenaed documents to the attorney (or self-represented party) at the return address noted in the subpoena (rather than to the court clerk), a copy of the subpoena needs to be served on all parties simultaneously. In addition, the party that receives the records “in any format” is required to deliver “forthwith” a complete copy of the records in the same format to all opposing attorneys (and self-represented parties, where applicable). L.2018, ch. 218.
The Sponsor of the bill issued a memorandum discussing the logic behind the legislation:
Our Advisory Committee has studied the procedures by which records intended for use at trial are produced pursuant to a subpoena duces tecum; and is of the view that counsel should have the option of having trial material delivered to the attorney or self-represented party at the return address set forth in the subpoena, rather than to the clerk of the court. This is especially true where the materials are in digital format and can be delivered on a disk or through other electronic means.
The amendment became effective August 24, 2018, and applies to all actions pending on or after that date.
At Leav & Steinberg, LLP we are always preparing our cases for trial and this new change in the law has already been implemented at our office. This change has improved the ability for our firm to better represent those seriously injured looking for a New York Accident Lawyer who will work towards getting their case to trial if the responsible party will not settle for full value.
One of the preliminary hurdles to the admissibility of documents at trial is to establish their authenticity. An amendment adding CPLR 4540-a attempts to tackle the issue of the authenticity of material authored or otherwise created by a party. L. 2018, ch. 219, eff. January 1, 2019. It provides that material produced by a party in response to a CPLR Article 31 demand seeking “material authored or otherwise created by such party” is presumed authentic when an adverse party offers it into evidence. However, this presumption can be rebutted by the producing party by a preponderance of evidence (of forgery, fraud or other authenticity defect) proving that the material is not authentic. Moreover, any other objection to admissibility, such as the lack of relevance or violation of the best evidence rule, for example, is preserved.
The Sponsor’s memo emphasized the benefits of the legislation at trial, primarily in avoiding an unnecessary burden placed on the proponent of the evidence and a waste of the court’s resources:
[E]vidence of such authenticity should not be required if the party who purportedly authored or otherwise created the documents at issue has already admitted their authenticity. And if a party has responded to a pretrial litigation demand for its documents by producing those documents, the party has indeed implicitly acknowledged their authenticity. Thus, in such cases, the presentation of evidence of authenticity is a waste of the court’s time and an unnecessary burden on the proponent of the evidence. The producing party’s simple objection to admissibility for “lack of authentication” in such cases should be summarily overruled. But often it is not, thus warranting remedial legislation. This measure, then, would codify and expand upon case law that has been overlooked by many New York courts, practitioners, and commentators.
This change in the law has been helpful at our firm. Leav & Steinberg and its staff are now not only digitally scanning the records and documents exchanged by the defense but are keeping the hard copy exactly as delivered so that at trial we can better represent our client’s and show that the documents produced during the trial are authentic and deemed admissable. This will be a valuable asset as our firm prepares all cases for trial.