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September 2019: Motion to Dismiss – Radiology Failure to Diagnose Cancer –Kings County

September 17, 2019

Senior Partner John J. Barbera, Partner Aryeh S. Klonsky and Of Counsel Gregory A. Cascino obtained a dismissal of this medical mal­practice action which arose out of our radiologist’s interpretation of Plaintiff’s December 18, 2014 cervical MRI. Plaintiff underwent a cervical CT on November 18, 2016, which was worrisome for soft tissue sarcoma. In Plaintiff’s May 6, 2019 Complaint he alleged that our radiologist misread the MRI and failed to diagnose his cancer at that time. MCB filed a pre-answer motion to dismiss all claims as time barred by the statute of limitations, which accrued upon the alleged misdiagnosis and expired 2 1/2 year later on June 18, 2017. The motion preemptively addressed Plaintiff’s anticipated reliance on “Lavern’s Law,” which now provides that the statute of limitation on claims alleging a failure to diagnose cancer accrues at the time of the discovery of the misdiagnosis. Specifically MCB cited its legislative history, which allows for the revival of claims such as Plaintiff’s which became time barred on or after March 31, 2017. Such revived claims must be brought by July 31, 2018, however, which Plaintiff’s claims were not. Plaintiff did not oppose our motion and voluntarily withdrew all claims with prejudice.  

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