Ms. Langro and Ms. Burke represented a pathology laboratory that was alleged by plaintiff to have misinterpreted her pathology study leading to a significant delay in the diagnosis of her endometrial cancer. We moved to dismiss the action as time barred, arguing that the plaintiff failed to commence the action within the statutorily established two and one-half year statute of limitations and could not establish continuous treatment.

Before the motion was even fully briefed, the New York State Legislature enacted “Lavern’s Law” (CPLR 214-a(b)), a statute which revived time-barred failure to diagnose cancer cases. Lavern’s Law provides for a discovery toll during the time the person was unaware of the misdiagnosis or delayed diagnosis, but no later than seven years from the alleged negligent act or omission. Only certain expired claims fell within this toll, and the challenge for us was to convince the court, without any significant body of case law, that plaintiff’s claim was not one of them. Relying on the legislative history and the plain language of the statute, we argued that, while this legislation permitted time-barred claims to be brought, the legislation also curbs a floodgate of litigants from bringing very old claims. It was our contention that the legislative intent was not only to benefit persons who had the misfortune of learning of a delayed cancer diagnosis, but also to protect the integrity of the evidence in old cases, to ensure that the evidentiary standard is not compromised due to the passage of time. We argued that plaintiff’s cause of action fell well outside the scope of the statutory amendment and every tolling provision afforded under all malpractice statues, and therefore, remained time-barred. The Court agreed and found that the pathology laboratory established that plaintiff failed to timely commence the cause of action and effectively conceded that the continuous treatment doctrine did not apply.

The Court granted our motion to dismiss, agreeing that Lavern’s Law did not save this particular case from dismissal.