Medical Malpractice – How Long Do I Have To File A Lawsuit?
We’ve all heard about the statute of limitations – the law that says you only have a limited period of time to sue someone that has caused you harm. For most personal injury actions in Pennsylvania, that time is two years. But what if you didn’t know the doctor or hospital made a mistake until after two years? What if you didn’t learn about the negligence until years after? What if your health insurance wouldn’t cover the test that could have discovered the malpractice?
The Courts recognized the issue and created the “discovery rule” setting forth that where the existence of an injury cannot be reasonably ascertained, the statute of limitations does not begin to run until such time as the injury’s existence is known or discovered, or becomes knowable or discoverable by the exercise of reasonable diligence. What does that mean? Simply, you have two years from the time you knew, or should have known, that someone else made a mistake.
So what is the practical implication of that rule, though? Pennsylvania courts have repeatedly held that the person injured has a duty to try and figure out what caused the injury. Take the example of a patient who goes in for an operation and the doctor leaves a surgical tool inside the patient. The mistake doesn’t initially cause issues, but in the months following becomes infected and starts to cause pain. The law puts the burden on the patient to make reasonable attempts to discover what is causing the pain, and whether it might be related to the surgery. Granted, the patient might not know until an x-ray shows the surgical tool still in the body, but the patient may not get that extended time to file a lawsuit if they don’t make a reasonable effort to figure things out.
Each case is different and there is no “bright line” rule as to when the clock starts to tick on the statute of limitations. Two different people with varying backgrounds and educational levels could know at different times. Clearly, a nurse hurt by malpractice could be assumed to know of wrongdoing much sooner than someone without medical knowledge. So the standard isn’t uniform.
Once the statute of limitations has run, often times, any chance of recovery – no matter how egregious the malpractice – is gone. Hence, the smart course of action is to be vigilant in your own medical care, ask questions and if any question remains, seek out legal advice immediately as to how to proceed. We will be happy to assist.
On August 2, 2016, Nathan M. Murawsky, Esq. argued before an en banc panel of the Superior Court as to the “discovery rule”, the argument to be shown on the Pennsylvania Cable Network, Thursday, August 25, 2016 at 7:30 pm.
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