The discovery rule can determine whether a potentially costly malpractice case will proceed, so understanding how it works is important for risk managers. Determining when the time period starts is especially important.

  • The discovery rule varies from state to state.
  • Secure relevant medical records immediately.
  • The clock does not necessarily begin with the time of injury.

The statute of limitations discovery rule can make or break a malpractice case, so it is important for risk managers to understand exactly how it works and how to respond when plaintiffs try to use it to their advantage.

The discovery rule puts a time limit on how long a patient can wait before filing a malpractice claim, but defining that deadline is not always clear.

Generally speaking, the limitation on the time period a plaintiff patient can file a lawsuit against the healthcare provider hospital is defined by state law, and those laws vary, says Catherine J. Flynn, JD, partner with the law firm of DeCotiis, FitzPatrick & Cole in Teaneck, NJ. The discovery rule allows for a “tolling” or delaying of the statute of limitations to a date when a patient knew or should reasonably be expected to know they were injured due to someone’s negligence.

The “reasonably expected to know” leaves some room for interpretation, but it is necessary because the patient might not be able to determine that an injury occurred at the time of treatment based on the subsequent medical circumstances involved, Flynn explains.

Courts have held that to be “equitable” or fair to the parties, the statute of limitations should begin to run when the facts presented would alert a reasonably diligent person that they were injured by a healthcare provider, says Michael A. Moroney, JD, also a partner with the law firm.

“At times, the patient might not be aware until some time has lapsed between when the condition for which they were treated and a medical problem has arisen as a result of the provider’s treatment,” Moroney explains. “The court will review the medical circumstance regarding when the injury becomes apparent to determine when a reasonable patient knew or should have known that someone did something negligently, resulting in the injury.”

Date of Discovery Critical

Flynn and Moroney offer this factual scenario that illustrates how the discovery rule works: A patient underwent surgery on Jan. 1, 2014, and an instrument was left inside the operative field. The operating room team (surgeon, nursing staff, surgical techs) did not conduct an instrument count. The patient was discharged and returned later for a post-op visit with the surgeon. The patient began to experience pain, reported it to the surgeon, and an X-ray conducted on July 1, 2014, revealed the retained instrument.

Although the surgery — the negligent act — was performed on Jan. 1, 2014, the “discovery” of the injury was not until July 1, 2014. Under these circumstances, the court would likely hold that the statute of limitation began to run on July 1, 2014; the date the retained instrument was discovered and when a reasonable patient would be aware of the injury resulting from a negligent act. Thus, in a state with a two-year statute of limitations, the patient would have until July 1, 2016, to file the lawsuit.

In many cases, plaintiffs will wait until just before that deadline to file the malpractice lawsuit. That’s because they can take their time preparing the case while the defendant hospital isn’t even aware there will be a case.

“The strategic advantage to a plaintiff in waiting to file suit until right before the statute of limitations expires is that they can conduct their pre-suit investigation up to that date. They can get their case organized, get their collection of factual information done, and have the case reviewed by experts,” Moroney says. “The longer the delay in filing, the greater the chance of prejudicing the defendants as they likely do not know of the impending lawsuit.”

Rule Often Hurts Defense

Once suit is filed, the defendant healthcare providers must conduct factual discovery to ascertain when the plaintiff knew or should have known of the injury and negligence, Moroney says. Based on what is discovered by way of depositions and medical records reviewed, a motion to dismiss might be filed based on the plaintiff’s lack of diligence in pursuing the lawsuit. For example, if the plaintiff in the scenario above was advised by a different treating doctor that the pain she was experiencing since the surgery was likely due to a retained instrument during the surgery, and the physician’s records reveal she was told this on Feb. 1, 2014, a strong argument can be made that the statute of limitations expired within two years of that date, or Feb. 1, 2016, if they waited to file suit, he explains. If the suit was filed after the February date, the patient’s case should be dismissed. For this reason, it is not always advantageous for the plaintiff to wait out the expiration of the statute of limitations.

Defendants often are put at a disadvantage by the tolling of the statute of limitations based on the discovery rule, Flynn says. In the time before the lawsuit is filed, records are subject to change or could potentially be subject to destruction. Witness memories are more likely to fade over the course of time. However, the lapse of time also could be used to impeach a plaintiff patient’s credibility due to the fading recollection of the events involved — which would be to the defendant’s benefit, she notes.

“Risk managers in a hospital setting can be proactive by ensuring that the medical records are secured in those matters where they have some idea that there exists the potential for a suit. Privileged interviews of key facts with witnesses conducted in cooperation with counsel will serve to preserve the recollections of those involved, which might otherwise fade over time to the prejudice of the defense,” Flynn says. “These privileged interviews would be helpful to witnesses in the future, should the lapse of time affect recollections.”

Knowing your own state’s discovery rule statute is important, says Robert Ryan, JD, a plaintiffs’ attorney with Kuzyk Law in Lancaster, CA. In California, for example, the statute of limitations on filing a malpractice lawsuit is three years, but only one year after the plaintiff discovered or through reasonable diligence should have discovered that he or she was harmed by professional negligence. That means the actual time limit could be one year from the date of injury, if the plaintiff knew about it immediately, or it could be as long as three years.

“Most states have statutes that work in the opposite way, allowing the plaintiff to extend the time period beyond the initial statute of limitations,” he says.

No matter the particulars of state statutes, the goal for risk managers will always be to get the clock running as soon as possible, Ryan explains. The discovery rule usually is seen as a benefit to the plaintiff because it can allow a longer time for filing suit than the statute of limitations allows, but Ryan says risk managers can use the rule to their benefit, too.

If the discovery rule is invoked to make a malpractice lawsuit possible beyond the statute of limitations, the defendant hospital should thoroughly explore documentation that might reveal the patient knew, or should reasonably have known, of an injury through professional negligence, Ryan says.

“You want to explore all prior interactions with healthcare professionals that could have revealed their current condition, or information that if a reasonable person followed up on, would have revealed their condition,” Ryan says. “You don’t necessarily have to prove that someone said to the plaintiff, ‘You were injured through professional negligence in your surgery three weeks ago.’ If the plaintiff had information available to them that a reasonable person would explore and then realize the injury had occurred, that can be enough to get the clock rolling.”

Defense attorneys sometimes use the discovery rule to their advantage when deposing the plaintiff. They will ask when the injury first started bothering the plaintiff, and whether he or she sought medical help. Then the defense attorney might ask if the plaintiff thought from the beginning that the surgery was successful. If the plaintiff replies “no” because he or she experienced constant tingling and pain in one leg afterward, the defense can search through any prior healthcare documentation for evidence that the plaintiff said that to a medical professional.

“If a doctor put that in his notes that the plaintiff said the tingling started after the surgery and was ascribing it, at least subjectively, to the possibility that something had gone wrong, that could trigger the statute running,” Ryan says. “The plaintiff now has the responsibility to pursue due diligence to establish whether the condition was the result of professional negligence.”

Physicians can be reluctant to document their suspicions, or a patient’s comments, that a patient’s condition is the result of negligence, not wanting to indict a fellow doctor and also not eager to be called for testimony in a malpractice lawsuit. But Ryan says that approach can be misguided. In fact, risk managers may want to encourage more documentation of such concerns because it can work to the accused physician’s favor in many cases, establishing that the plaintiff knew of the injury earlier than claimed, he says.

“Far from harming that earlier doctor, that kind of documentation can be what gets the case thrown out for being too late,” Ryan says.

The defense also can interview spouses and other family members to ascertain whether the plaintiff ever ascribed the condition to professional negligence, Ryan says. Recollections that the plaintiff said, “I think they did something wrong during the surgery,” or “I think there’s something wrong at that hospital,” might be used to convince a judge that the statute began running at that date.

“How well you research the case and when the plaintiff should have known of the injury can make all the difference in the world,” Ryan says. “It is always a mistake to just accept the other party’s assertion as to when the injury was known. You could be proceeding with a costly lawsuit that would have been dismissed if you had looked a little deeper.”


  • Catherine J. Flynn, JD, DeCotiis, FitzPatrick, & Cole, Teaneck, NJ. Telephone: (201) 347-2146. Email: cflynn@decotiislaw.com.
  • Michael A. Moroney, JD, DeCotiis, FitzPatrick, & Cole, Teaneck, NJ. Telephone: (201) 347-2167. Email: mmoroney@decotiislaw.com.
  • Robert Ryan, JD, Kuzyk Law, Lancaster, CA. Telephone: (661) 945-6969.