A Small Firm With Big Results

Time Marches On

On Behalf of | Nov 19, 2014 | Uncategorized |

When it comes to medical malpractice, there are many variables involved. One of the most critical factors is the time limitation about when a lawsuit must be started. All too often a potential client does not know what to do, so they do nothing until it is too late. Unfortunately, there are time limits on making claims, and these “statute of limitations” vary from state to state. Even if there is clear malpractice, nothing can be done once the statutory period ends. Then, to make things even more complex, there is also what is called the “discovery rule”. 

The website Medical Malpractice.com explains it like this:

Example Of The Discovery Rule

Let’s say that a person underwent an operation on January 1, 2005, and, in the operation, the surgeon left a clamp inside the patient. That is clearly malpractice. But let’s say that the surgeon didn’t know about the clamp left inside the patient, and that the patient had no problems with the clamp until January 1, 2010, when he/she began having pain. The patient had an x-ray on February 1, 2010, which showed the clamp. The new doctor told the patient that day that there was a clamp inside the patient, and he/she knew that it had to have come from the 2005 operation, because that is the only operation that the patient had ever had. According to the discovery rule, the statute of limitations for malpractice from the 2005 operation began running on February 1, 2010.

The Discovery Rule is rarely used though it is an important consideration. (The discovery rule is extremely limited in New York courts as opposed to New Jersey where it is more broadly applied).

On top of all of this is consideration for the fact that claims against public entities is strictly limited by the time requirements for Notices of Claims. This is another topic. Suffice it to say that if a public entity, government or agency is the potentially responsible party then all attorney consultations must be very prompt!