The Brooklyn mother of an autistic child whose cancer was diagnosed as asthma, accepted a $625,000 settlement that will only give her child enough money to survive until she is 20 years old.
Lavern Wilkinson, 41, could have received up to $10 million if it were not for the state’s archaic statute of limitations.
In May of last year, she discovered that the chronic cough she had for two years was actually lung cancer, in both of her lungs. Because it went untreated, it spread to other organs. Her doctor said if her original scans were read properly when she first went to the hospital, she may have been cured.
Instead, the hospital missed the small mass on her left lung when she went in for the cough two years ago. They diagnosed her with asthma.
Now that Wilkinson is facing her final days, she is growing increasingly concerned over the future of her daughter Micalia, 15, who has autism, retardation, and is unable to speak.
Caring for Micalia will cost $150,000 a year. And after paying her lawyers, Wilkinson will only have about $425,000 left over for the care of Micalia.
Her aunt, Gloria O’Connor, is going to take care of Micalia when Wilkinson passes. She is a 61-year-old breast cancer survivor, who is also worried about Micalia’s future.
“What I worry about in the long run is that Micalia will just end up in the system - in a state facility when I am too old or can’t take care of her anymore,” O’Connor said. “I am scared to death she will be abused or not well taken care of the way she is now. I love Micalia, but my love is a grand auntie’s love, not the love of a mother. That cannot be replaced. I worry for that child.”
When Wilkinson first went to the hospital for her cough, she was given a chest X-ray and an EKG. She was told the tests were normal and she should take Motrin.
Kings County Hospital’s radiologists, emergency room doctors and primary care doctors who saw Wilkinson all failed to inform her of the 2-centimeter nodule on her lung.
It wasn’t until May of 2012 that another doctor viewed her first X-ray and spotted the nodule. He finally told her what was going on: she had stage 4 lung cancer that spread to both lungs and three other organs. He also said she likely could have been cured if someone had informed her of the nodule in 2010.
Wilkinson’s case was difficult, because New York’s statute of limitations for filing suit against a city hospital expires within a year and three months after the medical error occurred. It doesn’t take into account when the patient actually discovered the unknown medical error.
That means Wilkinson had to have known about the error one year after her original X-ray, though she wasn’t even informed of her true diagnosis for two years.
Her attorneys felt that, based on past rulings, she would have lost in court since the statute expired.
But the city felt they should offer something, since they would have lost millions if Wilkinson had discovered the error just a year earlier. So, they offered her the $625,000.
“We had a responsibility to Lavern’s daughter to accept the city’s offer. She could have ended up with nothing if we rolled the dice and had attempted to sue in the courts,” Judith Donnel, Wilkinson’s attorney, said. “The law was on the city’s side.”
Many medical malpractice experts are outraged over the “pennies” Wilkinson was forced to accept.
If New York did not have the statute of limitations, Manhattan attorney Matthew Gaier said her case could have garnered her “in excess of $10 million.”
“It's a gross injustice to Ms. Wilkinson and her child,” said Robert Danzi, the incoming president of the New York State Trial Lawyers Association. “It’s a terribly paltry amount for the city to pay and doesn’t come anywhere near fairly balancing the enormous loss this woman had. An indescribable vacuum will be left for this disabled child that can never be filled.”
He also said that, if it were not for the extensive news coverage on her case, the hospital would have gotten away with paying nothing.