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Court Adopts and Applies “Discovery Rule” to Wrongful Death Cases Brought Under a Medical Malpractice Theory

Last month, an appellate court in Illinois issued a written opinion in a wrongful death by medical malpractice case that reversed the lower court’s ruling that the “discovery rule” did not apply to wrongful death cases. In the case, Moon v. Rhode, the court held that the discovery rule does apply, but since the lower court failed to make certain factual findings, the case had to be remanded so that the court could make those findings.

HourglassThe “Discovery Rule” in Medical Malpractice Cases

All medical malpractice cases must be brought within a certain amount of time. This requirement is outlined in what is known as the statute of limitations. In Georgia, the statute of limitations for medical malpractice cases is two years from the date of the incident. However, the discovery rule allows plaintiffs to file a case past the expiration of the statute of limitations if they did not discover the facts giving rise to the case until a later date. Notwithstanding the application of the discovery rule, Georgia plaintiffs must bring their medical malpractice case within the five-year statute of repose. The statute of repose acts as the ultimate limit, meaning that no case can be filed after the five-year period has passed.

Moon v. Rhode:  The Facts

In the Moon case, the plaintiffs were the surviving family members of an elderly woman who passed away while being treated by several doctors. The plaintiff filed a complaint against several of the doctors within the statute of limitations, and that case proceeded as normal. However, during the plaintiff’s investigation, it was discovered that another doctor, the defendant, may have also been partially responsible for their loved one’s death. However, this discovery was made after the statute of limitations had expired.

The plaintiffs filed the suit anyway and argued that the discovery rule should have tolled the statute of limitations until they discovered the potential negligence. The defendants claimed that there was enough information to make the determination of whether a lawsuit should be filed at the time of their loved one’s death. The plaintiffs lost at trial because the trial judge found that the case was filed too late. The plaintiffs then appealed to a higher court.

The appellate court had to remand the case back to the lower court. The court held that the discovery rule does apply to wrongful death cases. However, since the lower court’s incorrect ruling prevented it from determining when the statute of limitations actually began, the case had to be remanded back to the lower court for further clarification on the issue.

Have You Been a Victim of Medical Malpractice?

If you or a loved one has recently been a victim of medical malpractice, you may be entitled to monetary compensation. As the case discussed above makes clear, the timing of your case is crucial. While it may be possible to file a case after the statute of limitations, it will certainly be more difficult. Take action early and contact a dedicated Marietta personal injury attorney as soon as possible. Call 770-284-3727 today to set up a free consultation with an attorney to discuss your case.

More Blog Posts:

Case Arising from Low-Speed Accident on Slick Road Results in Defense Verdict, Marietta Personal Injury Lawyer Blog, September 20, 2016.

The Importance of Instrument Sterilization During Medical Procedures, Marietta Personal Injury Lawyer Blog, September 6, 2016.