New Opinion on Discovery Rule and Statute of Limitations in Malpractice

Under the default statute of limitations for medical malpractice cases in Maryland, malpractice victims have three years to file a lawsuit from the time of the malpractice or wrongful death. The discovery rule says, however, that subject to a five year limit, the clock only begins when you know or have reason to know of the connection between the malpractice and the injuries suffered.

This is one of those “little bit of information can kill you” type situations. Because, before I went to law school, I would interpret know or have reason to know as when the victim(s) would know or have reason to know. But that really is not the law. It is know or have reason to know if you have done a full investigation. The distinction is critical, as the plaintiff in this new Illinois malpractice case found out the hard way.

The Plaintiff in Dixon v. Roseland Community Hospital sued a hospital and a boatload of doctors for the wrongful death of her mother, an active 69 year-old woman who was an artist with no significant health history. For reasons that are not clear in the opinion, the woman had been admitted to the hospital because she was not feeling well. She was given an IV and felt pain in her veins. She was moved to another hospital but died. Her lawsuit alleged that she had gangrene from her hand to her wrist and died from cardiopulmonary failure that was likely secondary to septic shock.

The doctor filed a motion for summary judgment because the malpractice lawsuit was not filed within the two year statute of limitations in Illinois.

(There was also a wacky delay. Her first malpractice lawyer backed out and she refiled the case with another lawyer. But, either way, the two year limit had passed – which is probably why the first lawyer bailed in the first place.)

The Plaintiff was asked in deposition when she first decided to hire a malpractice attorney for her mother’s case. She said she decided to do so right after her mother died. Plaintiff’s deposition made clear to the court that in the weeks prior to her mother’s death, both the Plaintiff and her mother knew subjectively – and subjectively is the key word – that the decedent had suffered an injury. The extent of the injury, the court made clear, is not the issue. So the Plaintiff’s argument that she could not have known the extent of her mother’s injuries without the benefit of the autopsy report, or that her mother’s death was due to negligence, does not change the fact that the Plaintiff believed that there was injury more than two years before the death or malpractice. The court underscored that there is no requirement that a malpractice victim understand the full extent – or even a significant extent – of the injury before the statute of limitations begins to run.

You can find the opinion here