In a personal injury case, every state of the US has its own laws related to the time span when a person can bring forth the case within that time. Such law is called ‘statute of limitations.
Medical malpractices are one of the subtypes of personal injury cases. In a few states, the statute of limitations for medical malpractice is the same as there are for other personal injury cases. While in other states, they differ. For instance, a few states allow two to six years to bring forth a case of medical malpractice; whereas some allow only one year.
The Discovery Rule in Medical Malpractice
The discovery rule changes the statute of limitations depending upon the case. This refers to the concept that the victim did not know that the legal claim occurred and must not be punished as the harm was discovered quite late. The goal of this rule gives the plaintiff an opportunity to file the case after the statute of limitation is collapsed and he or she did know that the particular harm existed.
Each state has a different rule regarding the discovery of the harm. For instance, few states extend the statute of limitation to one year while others extend for many years. While few states have laws that until the harm is discovered the statute of limitations does not start.
Application of the Discovery Rule
There are countless ways that the rule of discovery is applied. For instance, if a patient had a surgery in January 2017, and had no negative symptoms or problems till January 2018 when the patient began experiencing symptoms such as pain.
The statute of limitations for filing the case will start from the day of discovery, January 2018 until January 2020, as long as there is a statute of limitations of three years. After collapsing of the standard time limit, the victim must rely on the discovery rule to file a lawsuit.
Sufficient and Reasonable Notice
The foundation of the discovery rule states that the statute of limitations begins running when the victim reasonably ought to have known that he or she remains the victim of medical malpractice.
For instance, a patient is diagnosed that he or she has a surgical instrument inside the body, this will place the victim on notice that he or she fell victim of the medical malpractice.
Additional Factors Affecting Statute of Limitations
Apart from the rule of the discovery of harm, other factors also come into play that affects the statute of limitations. For instance, claims of medical malpractice can have a shortened statute of limitation. Certain claims related to product liability can also lessen than other kinds of personal injury cases; this is called the statue of repose.
In case the victim is under the age of 18, the statute of limitations will not start until the victim turns 18. In case such claims are made against a government entity, statute of limitations will be shorter with an additional requirement to file the case.
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