As you may or may not know, the statute of limitations is a time limit within which a patient has the right to sue a negligent or careless doctor or healthcare provider for medical malpractice. But it’s not always clear when the clock starts ticking after the negligent act or omission to act occurs.
Are you confused already? Let us explain. In Hawaii, the deadline for filing a medical malpractice case is two years after the injured patient discovered the injury or should have discovered the injury through the “use of reasonable diligence.”
However, there are certain exceptions to the “discovery rule” many patients in Hawaii are not aware of. You can push the filing deadline by months or even years, and our Hawaii medical malpractice attorney at Kurzban, Kurzban, Tetzeli & Pratt, P.A., is going to explain how.
How the discovery rule can push back the statute of limitations
The “discovery rule” is an exception to the standard statute of limitations for medical malpractice cases, which can change the filing deadline. The “discovery rule” means that you can actually file a medical malpractice lawsuit even after the statute of limitations deadline expired.
The “discovery rule” applies when the plaintiff can prove that he or she did not know and could not have been reasonably expected to know that he or she had a potential medical malpractice suit.
Our experienced medical malpractice attorney in Hawaii explains that you can use the “discovery rule” exception to extend the standard statute of limitations only if you can prove your lack of knowledge of the potential medical malpractice or negligence on the part of your doctor.
The discovery rule: Actual discovery of negligence
Many of you mistakenly believe that the statute of limitations for a medical malpractice case in Hawaii begins running on the date the malpractice occurs, but this is not entirely true. Our Hawaii medical malpractice lawyer explains that the clock starts ticking on the date that you (a) knew or should have known that you were harmed in the course of medical treatment or surgery, and (b) knew or had sufficient notice of the cause of the harm.
Typically, legal experts say the “discovery rule” can be broken down into two subcategories: actual discovery of negligence and reasonable & sufficient notice.
Let’s review an example of the actual discovery of negligence. A patient underwent a surgery on July 20, 2016. In the course of the surgery, a surgeon left a foreign object inside the patient’s body. After the surgery, the patient had no health issues until January 21, 2019, when the area in which the surgeon left the piece of medical equipment began to hurt.
The patient then went to a doctor for a medical checkup and the doctor encouraged the patient to undergo an X-Ray, which showed the presence of the foreign object inside the patient’s body. Since the 2016 surgery was the only operation in that area of the patient’s body, it is clear that the foreign object had to come from the 2016 surgery.
While Hawaii’s standard statute of limitations is only two years, it is clear that the patient missed the deadline for filing a medical malpractice lawsuit. However, that patient can use the discovery rule exception to push back the standard statute of limitations and file a medical malpractice suit against the negligent surgeon.
The discovery rule: reasonable and sufficient notice
Let’s review an example of the “reasonable” and sufficient notice as the second type of the “discovery rule” exception in Hawaii. We will use the above example, but this time let’s say that the patient did not undergo an X-Ray. Instead, he went to see four doctors after he started experiencing pain in the area where the negligent surgeon left the foreign object. All of the doctors told the patient that although they did not know what caused the pain, they had a reasonable theory that it was caused by the 2016 surgery. In that case, the statute of limitations clock starts ticking on the date the patient visited the fourth doctor when the patient was put on “reasonable” and sufficient notice that the personal injury was caused by the 2016 surgery.
Have you missed the standard statute of limitations deadline in your particular medical malpractice case? Do not worry. Consult with our experienced medical malpractice lawyer in Hawaii at Kurzban, Kurzban, Tetzeli & Pratt, P.A., to speak about the potential of pushing back the deadline. Call our offices at 808-736-5035 for a free case evaluation.