discovery rule medical malpracticeA 32-year-old patient visits a primary care clinic complaining of bloating. A CT scan of her abdomen reveals two masses with strings attached to them. The objects turned out to be two gauze sponges left inside of her after two routine procedures. One was six years earlier, the other nine years earlier. The sponges had become attached to the patient’s momentum and colon. After the removal of the sponges, the patient’s symptoms resolved, and she was discharged a few days later.


Statutes of Limitations

Most civil claims are governed by a law known as the statute of limitations, which are designed to prevent the filing of “stale” claims. After a significant passage of time, relevant evidence may be lost, obscured, or not retrievable. Memories of witnesses may be diminished and witnesses may no longer available.

In Pennsylvania, the statute of limitations for personal injury claims is generally two years. You must bring the lawsuit before the two-year anniversary of the date on which you were injured. Otherwise, your right to pursue a claim may be permanently barred.

Wrongful death actions in medical negligence cases must be brought before the two-year anniversary of the death of the decedent, irrespective of how much time elapses between the injury and death. Even if death does not follow the injury for years, Pennsylvania law permits an action for wrongful death to be brought within two years of the date of death, rather than the date of the injury.


Discovery Rule

What happens if an injury doesn’t appear until six years after the event which caused it? Most states have some version of a “discovery rule”, which may be referred to as “delayed discovery rule” or “discovery of harm”.

According to the Pennsylvania Supreme Court, the Discovery Rule provides that “where the existence of the injury is not known to the complaining party and such knowledge cannot be reasonably ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible.”

Generally, the statute of limitations begins to run when a tort occurs. Under the discovery rule, the statute of limitations is suspended until the plaintiff becomes aware of the injury at issue or by reasonable diligence should have become aware. Whether or not a plaintiff has exercised due diligence in conducting that further inquiry or investigation is typically a question of fact decided by the jury.


Statutes of Repose

These laws extinguish a right of action after a specified period of time has elapsed, regardless of whether the cause of action has accrued.

Until a few years ago, some cases involving the discovery rule may have been negatively impacted by a Pennsylvania statute of repose. The statute prohibited any cause of action asserting a medical professional liability claim to be commenced after seven years from the date of the alleged injury. (An exception was provided for instances where a foreign object left inside a person’s body and is only later discovered.)

In 2019, the Pennsylvania Supreme Court found that the statute of repose for medical malpractice cases was unconstitutional. The legislature hasn’t yet enacted a substitute provision.

To best serve the needs of our clients, the team at Comitz Law stays abreast of the latest legal developments and changes in laws.

If you suffered an injury which may utilize Pennsylvania’s Discovery Rule, call Comitz Law at 570-829-1111 or email