How The Discovery Rule Helps Injured Patients File Late Lawsuits

BIKLaw Medical Malpractice Lawyer > Medical Malpractice > How The Discovery Rule Helps Injured Patients File Late Lawsuits

When a person is injured in California by medical malpractice, he or she has a limited amount of time to file a lawsuit. In general, a person must bring the lawsuit within one year of the date the negligence was discovered, and no more than three years from the date of the injury. These times limits, known as statutes of limitations, ensure that justice is swift, and that people accused of wrongdoing do not have to defend themselves against a decades-old lawsuit which they may not remember.

While this rule seems fairly simple, it can become complicated when a person does not realize that they were injured, or that someone else’s wrongdoing may be the reason for their pain. For example, if a person had a sponge, towel or other device left inside their body after a surgery, it may not cause problems right away. It may be years before anyone discovers that the source of a person’s pain may be the result of negligence during a long-forgotten surgery.

If a person could not have known that an injury was caused by someone else’s negligence, there is an exception to the California statute of limitations known as the delayed discovery rule. This rule allows injured people to file a lawsuit even after the normal statute of limitations has run out.

What Is Delayed Discovery?

In delayed discovery cases, there is a difference between the time the claim for negligence arises and the time when it accrues. For example, a claim for negligence arises whenever the surgeon makes the mistake. The time the claim accrues, meaning the time the statute of limitations starts running, depends on when the mistake was discovered. Once the mistake is discovered, that person has one year to file a lawsuit.

Most of the time, patients are unaware of exactly what goes on during a surgery. While they are briefed by their surgeon and other physicians, it is impossible to know what was actually done, what tools were used, and whether all standard procedures were followed. When a procedure is performed incorrectly, or if a tool or implement is left inside a patient, that person will hardly ever know about the mistake unless it starts causing health problems.

Sometimes, it is easy to discover the mistake, and there is no need for an extended statute of limitations. When problems arise immediately after surgery, it should be obvious that the surgery may be to blame. Other times, it can be impossible to tell that there was negligence at all.

For example, in one California case, a woman sued her doctor for malpractice after a gastric bypass surgery. Shortly after the surgery, she began having complications and returned to the hospital. During an exploratory surgery to look for the cause of the complications, the surgeon found that a hole had been punched in her bowel during the original bypass operation. Accordingly, she sued her doctor within the normal one year statute of limitations for medical malpractice.

Months later, during the pre-trial depositions, the woman’s physician testified that the type of tool that he used to perform the surgery often caused these types of bowel punctures. Since the woman had no way of knowing which tools were used on her and whether or not they were defective, she was allowed to add a claim against the tool’s manufacturer even though the statute of limitations on the claim had passed.

When Does The Statute Begin to Run?

Patients are assumed to know when something is wrong with their bodies. When a problem starts causing pain or unusual symptoms, they are expected to go have these symptoms checked out.

The statute of limitations depends on when the patient (or a reasonable person in the patient’s position) would suspect that something was wrong. The patient should conduct a reasonable investigation of the problem, meaning visiting the doctor, getting a second opinion, or having tests like x-rays or MRIs performed.

As soon as the patient suspects that something is wrong and that it could be the fault of a botched surgery or someone’s negligence, the one year time limit kicks in. The clock will start ticking even if the patient does not know the name of the person who actually caused the problem.

For that reason, you or your loved one should contact a medical malpractice attorney as soon as you suspect that something may have gone wrong during a surgery or procedure. The statute of limitations is unforgiving, and if you are late by even a day you will barred from ever filing a lawsuit.

Whether medical negligence is discovered right away, or takes years to show symptoms, doctors and medical professionals who commit malpractice should be held responsible for their actions. If you or your loved one was harmed as a result of a foreign object left in the body, or other type of medical malpractice, you may be able to seek compensation for your injuries from the doctor whose negligence harmed you.

At the Trial Law Offices of Bradley I. Kramer, M.D., Esq., our knowledgeable staff of medical and legal professionals can evaluate your medical case and help you understand your legal rights. If you would like to speak with an experienced Beverley Hills medical malpractice attorney, contact Dr. Bradley I. Kramer today by calling (310) 289-2600 or use our online case evaluation form to have your claim reviewed for free.

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