The Fundamentals of the Discovery Rule and Malpractice Claims
Posted February 23rd, 2017 by Anthony Carbone, PC.
Categories: Personal Injury.
It never occurred to you that you might have a medical malpractice claim. You have confidence in your doctors. They know you by name. As a female patient, you see both a general practitioner and a gynecologist. You are at the age where mammograms are ordered annually. You breathe a sigh of relief each and every year when they come back clean. And, then one day, you are suddenly faced with an advanced diagnosis of breast cancer.
You certainly are not thinking medical malpractice at the time you receive the grim news. However, you decide to seek out expert consultation in New York at one of the prominent medical centers. After all, your life is at stake. The cancer doctors look at your records. Turns out there was evidence of an issue three years ago. How did it get overlooked?
Statute of Limitations for Medical Malpractice
Like many personal injury claims, there is a deadline in which a medical malpractice lawsuit must be filed. This time limit is aptly referred to as the statute of limitations. Generally speaking, it is two years from the date of the alleged malpractice. These particular time constraints apply to adults with negligence claims.
Although the statute of limitations may be longer for claims involving children, you should still speak with an experienced medical malpractice attorney as soon as you are concerned about a physician’s negligence. For one, there are different time limitations on negligence claims that occurred during birth.
In the case we presented to you, it appears that the missed diagnosis occurred three years prior to what would have been your actual knowledge. Does that mean you can’t pursue a claim? Are you unable to pursue a lawsuit because you’ve missed the deadline? Fortunately, the short answer is no.
Discovery Rule and Malpractice Claims
The discovery rule comes into play in certain situations concerning medical malpractice. Not all negligence claims come to light within the requisite statute of limitations. However, that does not mean that the injured party has to forego legal rights to monetary damages.
Unfortunately, failure to diagnosis cancer is an example where the discovery rule comes into play the most. Doctors may have missed something on scans from years past that other professionals recognize as evidence. Claimants may have sought consultation for symptoms that were indicative of medical issues. Their complaints may have been documented and not followed up with appropriate testing.
Essentially, the discovery rule extends the statute of limitations. The two-year deadline is still in place, but it runs from the time of discovery of the alleged malpractice. Quite simply, once a medical provider tells you that they believe a diagnosis was missed, the deadline starts to run from that date.
Examples of Claims Subject to the Discovery Rule
A delayed cancer diagnosis isn’t the only type of claim subject to the discovery rule. For example, what if you had an operation, and surgical sponges were inadvertently left behind? You may suffer from pain for a number of years until the source of the problem is determined.
There are other issues that could fall under the discovery rule. In addition to a delayed diagnosis, misdiagnosis of certain conditions can take years. The test will be if the physician’s negligence resulted in damages. Would the outcome have been different if discovered earlier?
Get Legal Advice
Medical malpractice claims are often complicated. If you suspect that you or a loved one may have suffered damages because of medical malpractice, you should consult with an attorney. Contact the Law Offices of Anthony Carbone to see how we can assist you. There is no cost to meet with us.