Last updated: October 20, 2015 | Originally published: May 28, 2012
How the Statute of Limitations Law Works in Pennsylvania Medical Malpractice Cases (Is it Too Late to File a Surgical Mistake Case?)
In general, under Pennsylvania law, all cases must be brought within a specific time period set by statute; hence the name, statute of limitations. In most tort cases, including medical negligence or malpractice cases, the statute expires two years from the date of the injury. The statute of limitations clock begins ticking when an injury occurs. When applied to typical medical malpractice cases, this means that the statute of limitations begins to accrue on the date the malpractice, i.e., surgery, misdiagnosis, etc., occurred.
The Discovery Exception in Surgical Mistake Cases
However, in cases of surgical mistakes, errors or botched surgeries, the statute of limitations may be tolled or stalled by an exception called the “discovery rule.”
This is how the special rule works: in cases where the plaintiff-patient could not reasonably uncover the cause of the injury, the discovery rule may apply, giving the plaintiff-patient two years from the date of discovery to file suit.
Basically, if there is a good reason that the patient could not have uncovered the surgical mistake, the statute of limitations might be stalled.
Statute of limitations issues often arise in surgical error cases in Pennsylvania. In fact, one of the first issues a medical malpractice lawyer must address is whether a case is time-barred.
Reasons Why Surgical Mistakes May Go Undetected
In many cases of surgical mistake or error, the patient does not discover the negligence until well after the surgery. In some situations, many months or even years may pass. A patient often returns to the original surgeon and may be told that everything is fine. This may make it difficult or confusing for the patient to determine whether the surgeon committed negligence or not.
In many instances, patients who experience persistent symptoms may seek a second opinion from another, local medical doctor. Oftentimes, medical professionals in the same community are unwilling to “get involved” and give a true opinion. Patients may be told to return to their original surgeon or doctor.
Under Pennsylvania law, the following factors are important in determining whether a suspected case of medical malpractice is time-barred:
- dates of surgery, post-op follow up appointments, etc.,
- complexity of the surgery,
- symptoms, both pre and post surgery,
- persistence of symptoms after surgery,
- new symptoms after surgery,
- plaintiff’s level of knowledge of the surgery/symptoms,
- differential diagnoses/confusion of causes, and
- whether/when second opinions were obtained.
Statute of limitations issues require intensive review of the facts and timeline of events. It is crucial to have a potential medical negligence case evaluated immediately by a qualified medical malpractice lawyer.
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