How Does the Discovery Rule Work in PA Medical Malpractice Cases?
All personal injury claims in Pennsylvania are subject to a statute of limitations, which requires that plaintiffs file a legal action within two years of the injury event or lose their rights to make a claim forever. However, there are certain circumstances that can toll the statutory period, operating as a “time-out” to stop the clock from running. Latent injuries — those not immediately apparent — are covered by the discovery rule, which says that the statutory period does not begin until a plaintiff knows, or reasonably should have known, that an injury has occurred.
The most heavily publicized use of the discovery rule in recent years was in the NFL concussion lawsuits that resulted in a massive settlement and changes to protocols following suspected concussions. Former professional football players only recently discovered — or verified by convincing evidence what they had long suspected — that their various medical symptoms were the result of traumatic brain injury they suffered while playing, in many cases decades ago. The discovery rule allowed them to bring lawsuits against the league.
Latent injury can happen in a medical context as well. Suppose a doctor failed to diagnose a concussion and cleared a patient to return to activities where there was a chance of additional head trauma. That medical error would allow an injury to go untreated. The patient’s condition could worsen over time. But the patient might not connect symptoms such as mood swings, forgetfulness and depression to the misdiagnosis of a head injury until more than two years later. Similarly, an error in prescribing medication, or ignoring known dangerous interactions of different drugs, might produce a dangerous, latent condition that only becomes acute years later. Surgical errors can also remain hidden for a significant time.
However, even if the discovery rule tolls the statute of limitations, an injured patient in Pennsylvania must bring an action for medical malpractice within seven years of the date of the underlying medical error, unless the case involves a foreign object left in a surgical patient’s body. To insure they get their day in court, injured patients should contact a malpractice attorney as soon as possible after they discover a latent injury.