One of the most common questions that we receive from potential clients is whether the discovery rule applies to their case. This is invariably an interesting and complex question.
Before getting into what the discovery rule is and how it applies under Texas law to medical malpractice cases, we should first address why it’s even a thing. In three words: statute of limitations.
Statute of limitations
The statute of limitations is a law that defines how much time a party has to file a lawsuit. Under Texas law, negligence claims, which include medical malpractice cases, are generally governed by a two-year statute of limitations.
I use the word generally because different circumstances can expand the two years.
One such circumstance is the discovery rule, which basically means that the statute of limitations clock doesn’t start ticking until an injured person knew or reasonably should have known about the negligence or injury.
In many cases, the discovery rule clearly applies. In other circumstances, it clearly doesn’t apply. In still others, the discovery rule analysis falls into a gray area. That’s why it’s so important to get advice from a competent Texas medical malpractice lawyer about the specific facts of a possible case.
Let’s first think about an example where the discovery rule would likely apply. Say a surgeon or operating room personnel accidentally leaves a surgical sponge in a patient’s abdomen. Let’s call her Christy. Christy would have no way of knowing that a surgical sponge was left in her body, so the discovery rule would apply and the statute of limitations wouldn’t accrue (or start ticking) until she should’ve reasonably known that it was there.
That begs the question: When would a patient reasonably know about the potential negligence or injury? Under Texas law, the patient doesn’t have to know all the details. Christy would only need to know that something was wrong that would trigger a reasonable duty to investigate the situation. That may be when she had abdominal pain that wouldn’t go away, but it could also be when a radiology scan showed something unexpected was in her belly.
What about an example of when the discovery rule wouldn’t apply. Let’s say that the surgeon accidentally cut a nerve during Christy’s surgery and told her that she should just give it time because it would probably heal on its own. Christy waited two years before deciding it wouldn’t get better and then called an attorney.
In that situation, the discovery rule likely wouldn’t apply because Christy knew about the cut nerve from the get-go. There was nothing else for her to discover, if you will.
Timing is important
The statute of limitations and application of the discovery rule are often temperamental and unforgiving under Texas law. When granting additional time under the discovery rule, Texas courts typically do a day-by-day analysis, rather than granting large swaths of time. That’s why if you have been seriously injured because of hospital or medical care in Texas, it’s important to promptly seek the advice of a top-rated, experienced Texas medical malpractice attorney who can discuss timing and your legal options.