If you are a personal injury plaintiff (or defendant), you may not have heard about the “discovery rule.” It isn’t a rule that is frequently discussed, so you might be wondering what it is and whether it applies to your personal injury case.

 The Legal Problem: Delayed Manifestation of Injuries and the Statute of Limitations

Not all injuries you suffer in a car crash or other incident are always immediately apparent. Indeed, it is because it can take some time for certain injuries to manifest that personal injury lawyers advise clients to seek medical care regardless of how minor the impact was or whether they believe they are injured or not.

Some personal injuries can take months or even years to manifest. These are often the type of injuries caused by medical malpractice, work-related illnesses,  prolonged exposure to toxins, or due to the use of certain drugs, like Zantac.

The delayed manifestation of physical injuries causes a significant legal problem in personal injury cases.

Why?

Because the law, the statute of limitations mandates that any personal injury action must be filed with the court within a specific time period. For car accidents, wrongful death, or premises liability cases, a lawsuit must be filed within 4 years of the date of the accident. For medical malpractice cases, it must be filed within 2 years of the incident.

(Note that Florida recently revised its negligence statute, reducing the statute of limitations to 2 years. Negligence causes of action that accrue after March 24, 2023, are now subject to the shorter limitations period.)

But how can you file a lawsuit when you don’t even know you are injured?

You can’t. So clearly, the statute of limitations causes problems in cases of delayed manifestation of injury. By the time an injured plaintiff realizes he is injured, the statute has run, and his action will be barred.

This result is a harsh and unfair one. And yet, the law needs to have some level of certainty, which the statute of limitations provides.

The solution in these types of cases?

The “discovery rule.”

What is Florida’s Discovery Rule?

Florida’s discovery rule allows injured plaintiffs in cases of delayed manifestation of injuries (for example, in a medical malpractice case) some relief from the strict application of the statute of limitations.

The discovery rule tolls (stops) the running of the statute of limitations until the plaintiff discovers or should have discovered his or her injuries.

What this means is that the statute of limitations does not start running until the injured person “discovers” (or should have discovered) the act of negligence that caused his injuries. So, the operative date is not the date the negligence actually occurred but the date that the plaintiff discovered that he was injured.

For example, suppose a person undergoes an operation. Months later, he begins experiencing significant pain and discovers that the surgeon left an instrument inside of him. Applying the discovery rule, the two-year statute of limitations for medical malpractice would start to run from the date the person discovered the malpractice (i.e., that an instrument had been left inside him) and not from the date of the original surgery.

Although the extensions afforded by the discovery rule may seem sufficient, it is critical to bear in mind that there is always a lot to do to prepare a case for filing, so the sooner you consult with an experienced personal injury attorney, the better.

The discovery rule provides some fairness in cases of delayed discovery and helps to prevent the harsh application of the statute of limitations so that those injured by the negligence of another can recover for their injuries.

Nevertheless, understanding the parameters of the discovery rule can be challenging. As noted above, the statute of limitations is tolled until the date of discovery of the injury. But determining exactly when the plaintiff in a delayed discovery case was put on “notice” of the problem can be difficult.

Generally, whether or not a plaintiff had “notice” will be decided based on the specific facts of the case. It is up to the finder of fact (i.e., the judge or jury) to decide from the facts of the case when the plaintiff first had sufficient notice that something was wrong and whether or not he took adequate steps to further investigate the situation. If, on the other hand, there is no way a reasonable person could not have known a problem existed, then the court will decide as a matter of law that the plaintiff had “notice” of the situation. Determining when a plaintiff was put on notice of the situation is critical because that defines the date from which the statute of limitations will begin to run again. And, as mentioned, that date determines whether a plaintiff can file a lawsuit or not.

Delayed discovery cases can be difficult to prove. Consulting a Florida personal injury lawyer will always give you the best chance of understanding how the law may apply in your case.

Florida Personal Injury Attorneys Here to Assist You.

John Fagan and his experienced team are dedicated to helping those who have been injured due to the negligence of another. Contact us now for your free consultation, or call our firm at 777-JOHN. We serve clients throughout Florida. Our main office is in Orange Park. We have consulting offices in Palatka, Middleburg, Keystone, Starke, Gainesville, and Ocala.