A personal injury claim has a shelf life. In New Jersey, the statute of limitations is two years for these claims, including those for medical malpractice. This means you must file a lawsuit within two years of the date of your injury or you lose your legal right to sue. But what happens if you’re injured but you don’t know it? That’s where the discovery rule comes in.
The discovery rule says that if you didn’t know you were hurt on the date a negligent person committed an act or omission that harmed you, the statutory period doesn’t begin immediately. It begins when you know you have been hurt or a reasonable person in your position would be likely to discover they have been hurt. Here’s an example.
You’ve been working terribly hard and not sleeping well. In the middle of a stressful presentation, you collapse. You’re taken to the ER, where they diagnose you with nervous exhaustion, recommend a course of care, and release you. You follow the treatment plan, but you are plagued with numerous cognitive symptoms and none of the therapies seem to work.
Three years later, you suffer a fall and sustain a concussion. A CT scan reveals the concussion and — to your astonishment — evidence of a stroke that occurred three years ago. A subsequent examination of your old medical record shows the ER had evidence of your stroke, but simply ignored it. But that was three years ago, and the statute of limitations only runs for two years. Are you out of luck?
No. Thanks to the discovery rule, from this point of discovery you now have two years to file your claim against the ER for the misdiagnosis of your condition. The purpose of the discovery rule is to prevent negligent parties, especially those who cover up their tracks after a harmful error, from escaping responsibility due to the passage of time.
However, to benefit from the discovery rule, you must be reasonable. In the above example, suppose you had been dissatisfied with your course of treatment and sought a second opinion. That doctor said, “I suspect you had a stroke. I suggest you get a CT scan.” If, at that point, you ignored the doctor’s advice until you had the concussion, a court would likely rule that the statutory period began on the date of the second opinion, not later when your concussion was diagnosed.
If you suspect you are the victim of medical malpractice, Seigel Law can help. Take advantage of a free consultation by calling 201.444.4000 or contacting our office online to set up an appointment with an experienced medical malpractice attorney.