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How Does the Discovery Rule Protect Victims of Medical Negligence?

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A group of Veterans has been fighting to make a claim for injuries caused by medical negligence that did not come to light until after the statute of limitations had passed. Unfortunately, for those veterans litigating their cases in Tennessee, a state with no discovery rule permitting exceptions to its statute of limitations for medical malpractice, a successful settlement is unlikely, explains a personal injury lawyer in California.

According to the Greenfield Daily Reporter, in 2009, more than 10,000 veterans were notified that they needed to be tested for Hepatitis B, Hepatitis C and HIV. These veterans needed to undergo this testing as a result of potential exposure to the viruses caused by improper endoscopic cleaning in VA facilities throughout Tennessee, Georgia, and Miami. As many as 90 patients who were tested discovered they had one or more of the viruses.

One such patient who tested positive was Carl Huddleston. Mr. Huddleston had contracted Hepatitis B following a colonoscopy that took place in a VA facility in 2006. However, Mr. Huddleston was unaware of his condition until he received notice of the mishandling of the endoscopic equipment in February of 2009. Upon learning of the potential danger, Mr. Huddleston responded promptly, was tested and filed an administrative tort claim against the Veteran’s Administration for damages. Because the claim is against the government, there is a different-and more complicated-process for taking legal action than simply filing a medical malpractice civil lawsuit against a private hospital or physician.

Unfortunately for Mr. Huddleston and the more than 6,000 other veterans treated in the VA Facility in Murfreesboro, Tennessee, a court of appeals has recently ruled that Huddleston’s claim was made too late. Tennessee has a three-year statute of limitations on medical malpractice claims, unless there was fraudulent concealment involved. Essentially, this means that unless the wrongful or negligent act was intentionally and fraudulently kept from the victim, a person must bring a medical malpractice claim within three years of the date of the negligent act that caused the harm. If an individual does not bring his or her claim within that period of time, the claim is “time-barred” and the injured victim is not able to obtain compensation for his or her injuries.

The Court of Appeals in Tennessee reviewing Mr. Huddleston’s case indicated that this statute of limitations would apply in this situation as well. Although Mr. Huddleston took action within months of finding out about his exposure and resulting illness, the actual negligent act had taken place in 2006. Mr. Huddleston was thus two months too late for filing his claim. Other patients treated at the VA around the same time who were also infected with a virus would be too late as well.

Attorneys for Huddleston disagreed with the decision, indicating that it was unfair because different states have different statutes of limitations for medical malpractice. Tennessee’s statute of limitations is the shortest, with Florida allowing claims for four years after the negligent act and Georgia allowing claims for five years. Attorneys for Huddleston also suggest that the time limit for the statute of limitations should have started ticking when the veteran was first notified by the VA of the risk of infection, rather than from the time when the colonoscopy with unclean equipment occurred.

Many states have exceptions to their general statutes of limitations for medical malpractice cases where injury is not identified right away after the negligent actions occur. The name for such a rule is a “Discovery Rule” and variations of the rule are found in New York, Illinois, Texas and Florida, among other states.

The discovery rule serves an important purpose in protecting patients who are victims of malpractice. Patients are still obligated to act quickly, as the clock begins to run not just when they know of an injury but also when they reasonably should know of an injury. This means that as soon as symptoms of a medical problem show up, the injured victim will need to take action. Further, the injured plaintiff will still need to tie the medical problems and resulting injuries back to the negligence or wrongful acts on the part of the physician and will still need to prove his/her standard medical malpractice case including demonstrating that the doctor was negligent and that negligence was the direct cause of harm.

A discovery rule is intended to avoid situations similar to those now experienced by the veterans where they were injured through no fault of their own and could not have possibly known about this injury. The aim of a discovery rule is to prevent an unfair result such as the one that may be experienced by the Tennessee plaintiffs, who may be unable to receive justice for the very same wrong for which their neighbors in Florida and Georgia can sue in order to obtain compensation.

Additional information on medical malpractice and other legal subjects is available to the public free of charge through our office’s Preferred Friends and Clients Program.

If you would like to request one of these free resources, or to discuss a specific legal matter with a California personal injury lawyer, feel free to call 866-981-5596.

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