The Discovery Rule in Medical Malpractice Cases

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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Every medical malpractice case—and nearly every other type of lawsuit—is subject to a statute of limitations. A statute of limitations is a period of time in which a plaintiff is permitted to file his or her lawsuit. Depending upon the type of case, it can be as short as a two-year window, or as long as eight or ten years. 

Medical malpractice cases usually have a statute of limitations of six years or so, depending upon the jurisdiction. But when does the clock start ticking? It it’s easy to calculate the statute of limitations in an auto negligence case—the clock starts ticking the moment the accident occurs, and a plaintiff has X number of years from that point to file their suit. If the plaintiff does not file the suit within the window allowed, the cause of action is forever lost. In a medical malpractice context, the existence of a cause of action is not always immediately obvious. 

Simply put, a plaintiff may not know he or she has been a victim of malpractice for months or even years. This is why most jurisdictions have implemented some form of what is commonly known as the discovery rule.

The Discovery Rule Suspends Statute of Limitations

The discovery rule tolls (or suspends) the statute of limitations until an injury due to malpractice is or should have been discovered. There are many situations where the inciting event is obvious. 

For example, if a doctor amputates a right arm when he should have removed the left, the date of the malpractice is clearly the date the surgery occurred. The statute if limitations clock would begin ticking as soon as the patient awoke and realized the wrong arm had been removed. But in other cases, such as those involving damage to the brain or reproductive organs, or latent diseases such as mesothelioma, evidence of potential malpractice can take months or even years to emerge. 

Medical malpractice cases usually have very strict pre-lawsuit requirements. Doctors and insurance companies often need to be formally notified of a plaintiff’s intent to sue. Experts need to be hired, records need to be obtained, and the potential success or failure of a medical malpractice case needs to be analyzed in great detail before the first piece of paper is filed with the court. These tasks take time. So the discovery rule allows potential plaintiffs to operate with the full window as opposed to an abbreviated period of time dictated by a set statute of limitations.

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Example of the Discovery Rule in Medical Malpractice

Imagine a situation where a woman has an IUD implanted for birth control purposes, and after a period of time decides to use other methods. She has the IUD removed. Three or four years after the IUD is removed, the woman is actively trying to conceive. Despite what she thought was a clean bill of health, further medical testing shows that the IUD removal was performed improperly, and the woman is now barren. Between when the IUD was removed and when she discovered she was barren, the statute of limitations expired. Instead of being barred from bringing her case, the discovery rule would reset the clock, granting the woman in this example the full statutory period of time in which to bring her suit.

The discovery rule almost always contains qualifying language to provide for starting the statute of limitations clock when a victim of malpractice reasonably should have known malpractice was committed. For example, if the woman in the example above began trying to conceive shortly after the IUD was removed, could not, and did not seek any medical advice promptly, attorneys for the doctor will have an excellent argument that she should have reasonably known that something was wrong shortly after the IUD was removed.

The Bottom Line

The discovery rule is present, in some shape or form, in nearly every jurisdiction in the United States. While the exact provisions may vary from state to state, the general theory behind the rule does not: a claim for medical malpractice will generally not be barred for violation of the statute of limitations until the malpractice has or should have reasonably been discovered. 

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