It’s rare that a week goes by when we don’t have a potential client call Painter Law Firm specifically asking about the discovery rule.
As soon as we hear those two words, we know instantly that the potential claim relates to healthcare that occurred over two years ago. The reason is that there is no need to talk about the discovery rule when you’re still within the normal statute of limitations.
Under Texas law, here are the high points of the medical malpractice statute of limitations:
• The general statute of limitations is two years from the date of the alleged negligence, if the date is known or can be ascertained (for example, the date of a surgery). Alternatively, if a specific date cannot be ascertained (for example, a bedsore developed over a lengthy admission), then the statute of limitations is two years from the last date of the medical or healthcare treatment or hospitalization that is the subject of the claim.
• For minors under 12 years old when the negligence occurred, the statute of limitations is the minor plaintiff’s 14th birthday.
• There is a statute of repose that imposes an outer limit of 10 years, meaning that no tolling or exception could extend filing beyond this timeframe.
Under some circumstances, like the discovery rule, the statute of limitations may be tolled, or put on hold. The discovery rule may apply to claims that were inherently un-discoverable by the patient/plaintiff despite a showing of reasonable diligence. The discovery rule may be triggered by a physician’s fraudulent concealment of negligence or when the injury itself was undiscoverable.
Here’s a classic example of a case where the discovery rule would likely apply: a surgeon or operating room nurse left a sponge, gauze, towel, or other foreign body in a patient’s abdomen. The patient had no reason to suspect anything was wrong for three years, until severe abdominal pain led to an emergency room visit, where the retained object was identified.
Many people, including some attorneys unfamiliar with Texas medical malpractice law, believe that the discovery rule works by not starting the statute of limitations clock until the medical error was discovered. This is flat-out wrong, though.
The key concept to keep in mind when it comes to the discovery rule is the exercise of reasonable diligence. There are two ways that courts look at reasonable diligence when it comes to application of the discovery rule:
• Was the patient reasonably diligent in investigating potential signs that something was wrong after the course of medical treatment? The patient doesn’t have to be fully aware of the negligent care at issue. It’s enough that there were signs and symptoms of a problem that would’ve led a reasonably prudent person to seek medical care.
As a Houston, Texas medical malpractice attorney, I’ve handled a lot of cases involving bariatric surgeons and, in particular, poor post-operative care. Sometimes patients call five or more years after the original surgery, when their condition is terrible. It’s almost always the case, though, that they had persistent problems almost immediately after the surgery. I think those facts make the discovery rule hard to argue.
• Once the patient is aware or reasonably should have been aware of the negligence, the next question is whether the patient was reasonably diligent in filing a medical malpractice lawsuit. The appellate courts are all over the place on how they decide what’s a reasonable amount of time to file a lawsuit.
Generally, though, it’s a day by day analysis. When a defendant challenges application of the discovery rule on this ground, plaintiffs should be prepared to explain how they were diligent in pursuing the claim each and every day.
The take-home message
If you’ve been injured because of poor medical care, the best time to contact a top-rated, experienced Texas medical malpractice attorney is immediately. The gold standard is to file within the statute of limitations and not to take chances on potential tolling mechanisms like the discovery rule.
If you discover your potential claim after the statute of limitations has passed, it’s urgent to get competent legal advice to determine whether an argument can be made to get additional time based on the discovery rule or some other reason.
