Forensic, General & Medical
Expert Witnesses

What Is the “Discovery of Harm” Rule in a Medical Malpractice Case?


Expert Witness: HG.org
Every state has a law related to the amount of time a person can bring forth a personal injury case before being time-barred from making the claim. These laws are referred to as the statute of limitations.

Statutes of Limitations

Medical malpractice cases are a subsection of personal injury cases. In some states, medical malpractice statutes of limitations are the same as other types of injury cases. However, other states have a statute of limitations that is different than the statute of limitations for other injury types.

Many states have a statute of limitations between two and six years. However, some states have a statute of limitations as little as one year. The standard deadline means that a person has from the date of the medical procedure or act that provides a basis for the case until the statute of limitation. For example, if a
FIND MORE ARTICLES
patient has an operation and a mistake is made on the day of this surgery and the statute of limitations is three years, the victim has three years from the date of the surgery to bring forth the case.

Discovery Rule

The discovery rule can change the filing deadline. The discovery rule is an exception to the standard statute of limitations deadline. It is based on the idea that a victim may not be aware that a legal claim arose and should not be penalized because there was a delay in discovering this harm. The purpose of the rule is to give the victim a chance to file a lawsuit after the traditional statute of limitations has expired when he or she did not know that there was a valid claim.
When a patient did not actually know that he or she had a medical malpractice claim and could not have reasonably discovered this, the patient can use this discovery rule to file a claim after the statute of limitations expires.

Every state treats the discovery rule differently. In some states, the discovery of harm rule extends the statute of limitations by a year or other specific amount of time specified in the statute of limitations. Other states extend the statute of limitations for several years. Still others have a rule in which the time for the medical malpractice statute of limitations does not start ticking until the victim knew or should have known that he or she was harmed and had sufficient notice of the source of the harm.

Examples of the Discovery Rule

There are many different ways that the discovery rule may be applied. For example, if a patient underwent surgery in January 2016 and did not experience any symptoms of any problems associated with the problem until January 2017 when he or she started experiencing pain and then discovered that a surgical instrument was lodged in him or her, the statute of limitations may start on the day of the discovery. In this scenario, the statute would begin running in January 2017 and the victim would have until January 2020 to file a lawsuit alleging the malpractice if there was a statute of limitations of three years. Since the standard statute of limitations has already passed, the standard time limit has expired. The victim has to rely on the discovery rule to get the extra time to bring forth the lawsuit.

Reasonable and Sufficient Notice

A cornerstone of the discovery rule is that the statute of limitations starts running when the victim reasonably should have known that he or she was a victim of medical malpractice. For example, if a patient is diagnosed with having a surgical instrument in him or her, this would put the patient on notice that he or she was a victim of medical malpractice.

Other Factors that Affect the Statute of Limitations

In addition to the discovery of harm rule, there may be other factors that affect the statute of limitations. For example, medical malpractice claims may have a shortened statute of limitations. Claims involving product liability may also be shorter than other types of personal injury claims, called statutes of repose. If the victim was under the age of 18, the statute of limitations may not start ticking until the person turns 18. If the claim is made against a governmental entity, there may be a shorter statute of limitations as well as an additional filing requirement to report the incident to the agency.


Provided by HG.org


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

Find an Expert Witness