Gov. Andrew Cuomo. Photo by Rick Kopstein

ALBANY — The prime sponsor of legislation that would extend the amount of time in which a patient can file a medical malpractice lawsuit for a missed cancer diagnosis isn't optimistic about the bill becoming law.

State Sen. John DeFrancisco, R-Syracuse, told the New York Law Journal on Wednesday afternoon that negotiations with Gov. Andrew Cuomo's office on Lavern's Law have stalled.

“The governor has been pushing back on the law, wanting to make further changes. I think he's concerned with the hospitals' concerns,” said DeFrancisco, the deputy majority leader of the state Senate.

The bill—named after 41-year-old Lavern Wilkinson of the Bronx, who died in 2013—would extend the amount of time a patient has to bring a malpractice lawsuit against a physician or hospital over a missed cancer diagnosis. The bill, which was approved by lawmakers during the last few days of the legislative session in June 2017, would start the clock on when patients can bring medical malpractice cases involving cancers or malignant tumors from when the error is discovered by the patient, instead of when the misdiagnosis occurred, as is specified by current state law.

Cuomo has until the end of the month to make a decision on the legislation, which has received the support of the New York State Trial Lawyers Association, a quiet but influential group in the Capitol. The legislation has pitted some of the Capitol's largest and most influential groups against each other, including the Trial Lawyers Association and hospital trade groups such as the Greater New York Hospital Association and the Healthcare Association of New York State.

The governor's office did not respond to a request for comment. The Trial Lawyers Association and the Healthcare Association of New York State also declined to comment.

Physicians, hospitals and malpractice insurers have argued that the legislation could open up a Pandora's box of lawsuits that could end up costing hospitals millions of dollars.

But DeFrancisco disputed that argument. “I've heard that rationale so many different times. It's a minuscule number of cases but it's a matter of fundamental fairness,” said DeFrancisco, who was formerly of counsel at Syracuse-based personal injury firm DeFrancisco & Falgiatano.

“So, [Cuomo] keeps pushing back and I can't see how he could keep doing that when he claims he's in support of the bill. If he wants to torpedo it in this fashion, then it's going to be, I think, a very big injustice if he doesn't sign this bill,” he said.

According to sources involved in negotiating the bill, but not authorized to publicly speak, conversations are ongoing. A source close to the legislative negotiations said the governor's office and Trial Lawyers Association are “engaged in good-faith discussions.”

Still, there's a possibility that the governor will sign the bill if chapter amendments that close certain loopholes in the legislation could be added, according to a source familiar with the matter.

The bill would allow patients to sue for misdiagnosis going back seven years, which has worried hospitals and malpractice insurers because they have not set up a reserve fund for potential claims. The legislation's language also doesn't ensure that the misdiagnosis only involves cancer, proponents argued.

Wilkinson, for whom the legislation is named, died in 2013 from a “treatable form of lung cancer.” Her doctors failed to tell her that a chest X-ray taken in 2010 showed a suspicious, two centimeter mass on her right lung, according to the New York Daily News, which has written numerous editorials urging passage of the legislation. In May 2012, Wilkinson returned to Kings County Hospital in Brooklyn with a chronic cough. A chest X-ray found that the cancer had spread throughout her body. By the time Wilkinson learned of the doctors' error in 2012, the statute of limitation for her to file a lawsuit had expired.