Discovery of Medical Negligence: Patient Options and Time Limits

All states have very specific deadlines for filing personal injury cases in general and medical malpractice lawsuits in particular. These deadlines are called statutes of limitations. Medical malpractice statutes of limitations can be complex because most states have created a multi-part statute of limitations for medical malpractice cases. The standard deadline gives victims of medical malpractice a certain number of years, usually anywhere from two to six years, depending on the state, after the malpractice occurred within which to file a lawsuit. But a wrinkle known as the "discovery rule" could change the filing deadline. We'll explore that in this article.

(Get state-specific information on the statute of limitations in medical malpractice cases in our Medical Malpractice Statutes section.)

The Discovery Rule

The more complicated part of the statute of limitations is generally called the discovery rule. The discovery rule is an exception to the standard deadline. The purpose of the discovery 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 did not even know that they had a potential medical malpractice claim

The key to the discovery rule is that the malpractice victim did not know that he/she had a potential medical malpractice. Only patients who truly did not know -- and could not reasonably have figured out -- of their doctor's medical negligence have the right to use the discovery rule exception to file a medical malpractice lawsuit after the expiration of the standard statute of limitations.

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 if a surgeon negligently left a medical instrument or some other object inside a patient’s body.

An example of one state’s discovery rule is as follows: the statute of limitations begins running in a medical malpractice case on the date that the malpractice victim: 1) knew or had sufficient notice that he/she was harmed; and 2) knew or had sufficient notice of the cause of the harm.

Example of the Discovery Rule

Let’s say that a patient had an operation on June 1, 2008, and, in the operation, the surgeon left a piece of medical equipment inside the patient. Let’s say also that the patient had no problems after the surgery until January 1, 2012, when he/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 piece of equipment, and the new doctor told the patient about the problem on that day. If the 2008 operation was the only operation on that part of the body that the patient had ever had, the equipment obviously had to come from that operation. As a general rule, if a surgeon leaves medical equipment inside the patient during an operation, that surgeon is negligent.

If the state’s standard statute of limitations is less than 4 years, the patient missed the statute of limitations, and now has to rely on the discovery rule exception to the standard statute of limitations.

The discovery rule exception to the medical malpractice statute of limitations would say that the statute of limitations for malpractice from the 2008 operation began running on January 1, 2012. If, for example, the discovery rule exception gives the patient 2 years from the date that he/she knew or reasonably should have learned that the doctor was negligent, the patient will have until January 1, 2014, to file a lawsuit against the original surgeon.

But that is only half of the discovery rule. 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 2012, and they all told him/her that they didn’t know what was causing the pain, but that it probably was caused by the old operation and that the patient should have an x-ray to make sure.

In this case, the patient, after seeing five doctors, 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.