Medical Malpractice: Statute of Limitations and the Discovery Rule

An explanation of the statute of limitations as applied to medical malpractice claims and how the discovery rule may expand the opportunity to file claims in certain cases.

Medical malpractice is a term that encompasses a wide range of cases including misdiagnosis, surgical errors, prescription errors, birth injury, hospital negligence, and emergency room negligence. There are numerous situations that may contribute to medical malpractice, making every case distinct.

It is common for a victim of malpractice to not become aware of an issue for weeks, months, or years after the initial negligent act. Therefore, when considering the statute of limitations to file a medical malpractice claim, standard rules can be somewhat restrictive. Attorney Joseph Marrone explains, “The statute of limitations to file a medical malpractice claim is generally two years. However, there is a discovery rule which allows a claim to be filed later, when the injured party knew or should have known about potential malpractice.”

For instance, a woman that undergoes surgery may have a seemingly successful procedure and leave the hospital. Months later she begins to feel ill or have unexplained health issues. As a result, the woman undergoes a series of recommended testing and ultimately learns that a surgical instrument was left inside of her during the previous surgery. In cases such as these, the discovery rule offers injured parties a sort of extension on filing a claim. The discovery rule allows the statute of limitations to begin when the Plaintiff knew or should have known about potential malpractice. Therefore, the discovery rule may apply to the described case, with the statute of limitations beginning once the woman learned of the object left inside of her from a previous surgery. This would enable counsel to have an adequate amount of time to complete discovery and file a claim on her behalf without failing to meet the standard two year statute of limitations.

It is clear that the discovery rule, though not applicable in some jurisdictions, provides many more the opportunity to file medical malpractice claims than if only the statute of limitations applied.

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