A medical mistake does not always cause clear signs of harm right away. For example, a doctor may fail to spot a tumor on an X-ray, or a surgeon may leave a small piece of medical equipment inside a patient. In some cases, you may not discover the problem until months or years later.
Kentucky law accounts for these situations through the discovery rule. This rule affects when the deadline to file a medical malpractice lawsuit begins. Knowing how it works can help you understand how much time you may have to pursue a claim.
When does the discovery rule start the clock?
Under Kentucky Revised Statutes (KRS) § 413.140(1)(e) and (2), you generally have one year to file a medical malpractice lawsuit. However, the clock does not always start on the date of treatment. Instead, it begins when you first discover your injury or when you reasonably should have discovered it.
Kentucky courts look at two key factors when deciding when you discovered an injury:
- Knowledge of the injury: You knew or should have known that a doctor or another medical provider may have wronged you.
- Knowledge of who caused it: You knew or should have known who may have caused the injury through their actions.
For example, a patient may learn months after surgery that a doctor failed to remove a surgical sponge. The discovery rule may affect when the one-year filing period begins because the patient could not have found the problem right after surgery.
However, the rule does not give you unlimited time. You cannot delay filing simply because you have not learned every detail about the medical mistake. In Wiseman v. Alliant Hospitals, Inc., the Kentucky Supreme Court explained that the filing period depends on when a patient knows or should know about the injury and who may have caused it.
What can affect your filing deadline?
Each medical malpractice case has different facts. Medical records, test results and follow-up visits may help show when you first had reason to suspect a medical mistake.
For instance, a second doctor’s report may reveal that an earlier provider missed signs of an infection. The date of that report may matter, but a court will also consider whether you should have discovered the problem sooner.
Working with a medical malpractice attorney can help you review these records, assess the discovery date and determine how Kentucky’s filing deadline may apply.
Don’t let time run out
The discovery rule can give patients more time to pursue claims involving hidden medical mistakes. Still, waiting too long can put your right to seek compensation at risk. Examining when you first discovered the injury and who may have caused it can help clarify the deadline that applies to your case.