"Discovery" of Medical Malpractice and the Statute of Limitations

When it comes to the filing deadline for medical malpractice lawsuits, the statute of limitations "clock" doesn't always start on the day of the medical error.

All states have specific time limits for filing a medical malpractice lawsuit in court. These deadlines are set by a law called a "statute of limitations," which can be particularly complex in medical malpractice cases, since most states have carved out special rules for figuring out when the "clock" starts ticking. There's usually a standard deadline, which gives plaintiffs a certain number of years (typically between two and six) after the medical error occurred to get the lawsuit filed. But a wrinkle known as the "discovery rule" could affect when the applicable time period actually starts.

The "Discovery" Rule in Medical Malpractice Cases

The complicated part of the statute of limitations for medical malpractice lawsuits is usually called the "discovery" (or "discovery of harm") rule. The purpose of this rule is to give victims of medical malpractice the right to file a medical malpractice lawsuit after the standard statute of limitations expired, when they might not have known (or might not have had reason to suspect) that they were harmed by a health care provider's medical negligence.

The key to the discovery rule is that the patient did not know that he or she had a potential medical malpractice case. Only patients who truly did not know of—and could not reasonably have been expected to figure out—their health care provider's medical negligence have the right to use the discovery rule exception to file a medical malpractice lawsuit, if the applicable deadline has passed.

The discovery rule is written differently in each state. In some states, it only extends the statute of limitations for a year or two, while in others it might extend the statute of limitations for many years. And in still other states, the discovery rule only applies in certain situations (if a surgeon negligently left a medical instrument or some other object inside a patient’s body, for example).

An example of one state’s discovery rule might be: "the statute of limitations time period begins 1) on the date on which the medical malpractice occurred, or 2) on the date on which the patient knew or had sufficient notice to know that he or she was harmed by medical malpractice." (Learn more about when it's medical malpractice, and when it isn't.)

Examples of the Discovery Rule

Actual Discovery of Medical Negligence. Let’s say a patient had an operation on June 1, 2017, and the surgeon left a sponge inside the patient. Let’s say also that the patient had no problems after the surgery until June 15, 2019, when she began having pain. The patient went to a new doctor, and the new doctor sent the patient for an x-ray that day.

The x-ray showed the presence of the sponge, and the new doctor told the patient about the problem on that day. If the 2017 operation was the only operation on that part of the body that the patient had ever had, the sponge had to come from that operation. As a general rule, if a surgeon leaves a medical instrument or other object inside a patient after an operation, that surgeon is negligent (based on the legal concept of "res ipsa loquitur").

If the state’s standard statute of limitations for medical malpractice lawsuits is 2 years, the patient has missed the filing deadline, and now has to rely on the discovery rule exception to the standard statute of limitations, before the doctor can be sued.

The discovery rule exception to the medical malpractice statute of limitations would say that the statute of limitations for malpractice from the 2017 operation began running on June 15, 2019 (the date on which the patient was put on notice about what happened). If the exception applies, the patient will have until June 15, 2021 to file a lawsuit against the original surgeon.

Reasonable and Sufficient Notice of Potential Medical Negligence. Besides "actual" discovery, the second part of most states’ discovery rule exceptions is that the statute of limitations will begin running when the patient reasonably should have known that he/she was a victim of medical malpractice.

Let’s go back to the above example, but this time say that the patient did not have an x-ray. Instead, let’s say that the patient went to see five doctors during 2019, and they all told her that they didn’t know what was causing the pain, but that it probably had something to do with the old operation and that the patient should have an x-ray to make sure.

In this case, the patient, after seeing five doctors who all offered the same advice, is now on sufficient notice that the original surgeon may have done something wrong. The "discovery rule" version of the statute of limitations will begin running certainly on the date that the patient saw the fifth doctor, and probably on the date that the patient saw the second doctor. Get more details on the statute of limitations in medical malpractice cases.

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