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Published: August 16, 2012 | Last updated: February 16, 2016
A: There is no simple answer when determining the statute of limitations in a surgical malpractice case in Pennsylvania. Under Pennsylvania law, anyone who is injured by another party (including medical malpractice by a surgeon, hospital, etc.) has two years from the date of the injury/accident to file a lawsuit. However, there is a complex exception to this 2 year rule. The discovery rule is a limited exception and often applies in cases where a surgeon makes a mistake, such as leaving surgical material behind in a patient. These types of situations, although rare, occur every year. Read more about the statute of limitations in a surgery malpractice case in Pennsylvania.
The Discovery Rule in Surgeon Malpractice Cases in Pennsylvania
In many surgery malpractice cases in Pennsylvania, the statute of limitations will expire two years after the patient discovers the negligence, not two years from the date of the surgery. In other words, the two year period begins ticking when the patient learns about the surgeon’s negligence. In some situations, a surgeon or hospital’s mistake is not discovered until weeks or months later. However, as a caveat, the patient must show due diligence in trying to uncover the source of the symptoms or injury. This is key. The patient must be able to show that they exercised reasonable caution in trying to figure out what occurred.
In some surgical malpractice cases, negligence of the doctor or hospital will be apparent fairly quickly. These cases include:
- wrong-site surgery mix-up,
- injuring another area, or
- failing to diagnose or treat a post-op infection.
In these cases, the two year period will almost always begin ticking soon after the negligent act occurred, i.e., the date of the surgery. For example, a surgeon performs a fairly routine abdominal surgery in Philadelphia, Pennsylvania. The next day, the patient begins experiencing symptoms of infection, including fever, chills, surgical site oozing, etc. However, the hospital and surgeon fail to diagnose the infection. Days later, the patient nearly dies from sepsis, a full body infection. Here, the statute of limitations would probably begin ticking on the date the patient discovered that they had an infection, which would be a few days after the actual surgery.
If you have a question about your surgeon or doctor’s treatment and suspect negligence, it is vital to speak to a knowledgeable medical malpractice lawyer in Pennsylvania immediately in order to preserve your claim. Failure to do so may result in dismissal of your lawsuit.
Related Pennsylvania Medical/Surgical Malpractice Legal Articles:
- Pennsylvania Medical Malpractice Law – The Statute of Limitations in Surgical Error Cases
- Pennsylvania’s Statute of Limitations in Misdiagnosis or Failure to Diagnose Cases
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