Statutes of limitations specify the period of time after the occurrence of an injury during which any suit must be filed. In medical malpractice cases, nearly every state has a statute of limitations that is specific to medical malpractice actions. In most states, the statute of limitations for medical malpractice actions is two years. This means that the plaintiff must file suit within two years of the date of the alleged malpractice. Many states also have adopted a “discovery rule” that serves to extend the statute of limitations. The discovery rule delays the running of the limitations period until the time the plaintiff either knew or should have known about the alleged negligence.

States that have adopted the discovery rule have done so in different ways. In some states, the general medical malpractice statute of limitations was modified to provide that the running of the limitations period begins when the injury occurred or when the plaintiff either knew or should have known of the alleged injury. Other states have established the discovery rule as an exception to the limitations period contained in the statute of limitations. In these states, plaintiffs must establish that they fall within the exception to the general limitations period.

Whether the discovery rule applies to toll the running of the statute of limitations is a matter for the courts to decide. In general, a plaintiff will be charged with knowledge of a medical malpractice claim when he or she possesses sufficient critical facts to provide notice that a wrong has been committed and that he or she needs to investigate to determine whether medical malpractice has been committed. In some states, a plaintiff is charged with notice of harm once the plaintiff learns of the injury or illness. Other states apply a more lenient rule. In these states, the statute of limitations does not begin to run until the plaintiff learns or should have been suspicious that the illness or injury was caused by medical negligence. Thus, for example, a plaintiff who suffered complications after surgery would have known of the complications as soon as she experienced symptoms. In the states with the more stringent discovery rule, the limitations period would begin to run as soon as the plaintiff knew she had an illness or injury. In the more lenient states, the plaintiff would have additional time to link the illness or injury to possible negligence of the surgeon during surgery.

In the states that allow additional time for plaintiffs to discover the cause of an illness or injury, the discovery rule does charge plaintiffs with a duty to make a reasonable investigation as to the cause of an illness or injury. If the evidence shows that the facts that the patient was aware of at the time he or she suffered an illness or injury should have led him or her to realize that an injury had occurred, the statute of limitations under the discovery rule begins to run. Thus, if a plaintiff begins to suffer from illnesses immediately after undergoing treatment by a physician and there are no other obvious causes for the illnesses, the plaintiff may be charged with notice that he or she has a medical malpractice claim and the limitations period would begin to run.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.