QUESTION
If the statute of limitation has run out, can I claim the discovery rule?
Asked on Sep 25th, 2013 on Personal Injury - Florida
More details to this question:
I fell about seven years ago and injured my arm. I went to the same hospital twice about the same arm and was sent home twice . The hospital claimed I sprung my arm. Throughout the years, I was having pain but as the years went on (2 years ago) the pain in that arm became worse until I could no longer use it without being in severe pain. I went to my doctor and they could not find anything that would cause such pain. Finally after complaining about my arm over and over, my doctor sent me to an Orthopedic specialist about three weeks ago. There I found out my arm has a bone sticking (broke) in between where my elbow is. I am going for further test to see if there is anymore damage to my elbow. Do I have a case against the hospital who failed to see that my arm was broken or damage or both?
7 ANSWERS
William M Stoddard
I am not sure of your facts. Medical negligence statute of limitation is three years or one year from discovery, but no more than eight years after the wrong occurred. (Or I think that is the Statute. It used to be 10 years, but was amended recently.) if you have just found out what was wrong, how easy was it to find it? Has it been more than 8 years since the first visit and exam was done? If it has been more than 8 years, you have no claim you can pursue. If it has been less, well the answer is maybe you can. A lot depends on whether it should have been caught much earlier. And what are your damages. Pain is unfortunately not a high dollar value. But the loss of use and other factors you mentioned, might make this a good claim. By the way politically, if your claim does not have at least a $50 K value, no attorney will take the case. 90% of medical malpractice cases are suits and fought to a trial.
Answered on Sep 28th, 2013 at 2:44 AM
Ronald A. Steinberg
You may. The delay in discovery may give you a chance.
Answered on Sep 27th, 2013 at 3:40 AM
Personal Injury Attorney serving Charlotte, NC
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Paul Whitfield and Associates P.A.
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You have 2 problems. There is a 3 years statute. And secondly how does anybody know how and when you arm was damaged? Your testimony? You are kidding. If you don't have medical testimony to back you up you have nothing anyway and you don't have anything.
Answered on Sep 26th, 2013 at 5:29 AM
James Eugene Hasser
It would take an medical expert to say whether or not malpractice occurred, but in Alabama, you would be too late.
Answered on Sep 26th, 2013 at 5:06 AM
Regulatory Attorney serving Spokane, WA
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Deissner Law Office, P.C.
This might be a discovery rule matter but usually that is determined by the date you first realized there was a problem arguably 2 years ago. Really would need to see a lawyer and given the nature of the injury might not be worth the expense to bring a suit.
Answered on Sep 26th, 2013 at 4:47 AM
Chapter 7 Bankruptcy Attorney serving Syracuse, NY
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Andrew T. Velonis, P.C.
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I don't think so. The discovery rule usually pertains to medical devices left in the body, or exposure to toxis substances. Also, if the bone fragment was that hard to find, the likelihood of success against the hospital is minimized.
Answered on Sep 26th, 2013 at 3:55 AM
Automobile Negligence Attorney serving Orlando, FL
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Kelaher Law Offices, P.A.
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In Florida, there is also a statute of repose that says you cannot bring a lawsuit against a health care provider more than 4 years after the date the malpractice was committed, regardless of the date of discovery. So, it looks like you're out of luck.
Answered on Sep 26th, 2013 at 3:17 AM