“I Didn’t Know”… The Discovery Rule

The Discovery Rule

When the human body is in pain, it is only natural to seek out the reason for it. One may consult a physician to see if this pain is temporary or if there are underlying issues that could cause continuous pain of which only surgery may be the option. This journey to unfold the cause of this pain can be stressful enough without adding surgery to the picture. Nevertheless, if that is what it takes, questions that come to mind are asked to make the patient aware of the surgery that will take place and what it entails.

The physician is responsible to make sure that all information pertinent to the surgery and necessary precautions to be taken for the patient to have continued health following the surgery are disclosed prior to the patient’s consent to undergo surgery. Once a level of comfortability is established, consent is given to proceed with the surgery. After the surgery is complete, new knowledge unearths and the patient is made aware that something is not right.  

Not knowing can hurt a medical malpractice case if you wait too long. The “discovery of harm” or “discovery” rule comes in handy for those who become aware of negligence after the original statute of limitations has expired. In the state of Florida, the immediate statute of limitation to file a medical malpractice lawsuit is two years or four years from the initial discovery of injury. 

This is like the case of Shadrick v Coker.  In this case, Donald Shadrick was having issues with his back and ended up getting back surgery by Dr. Coker.  Prior to one of the many surgeries that Shadrick had, Dr. Coker advised the patient that he was doing a “routine” surgery.  After a series of unsuccessful surgeries, Dr. Coker convinced the patient that the pain was psychosomatic, pain that exists in the mind but not in reality. 

The last surgery took place for Shadrick in 1990.  Shadrick discovered that a screw used in his back during a “routine” surgery was actually experimental and he did not consent to this surgery.  Shadrick filed the lawsuit in 1994 stating that information was concealed and the screw was not approved for the procedure in which it was used.  Dr. Coker was able to escape many of the charges because of a couple things:

Dr. Coker advised Shadrick of the placement of the screw after the surgery, giving him enough time to make a case.

Shadrick was aware of the continued issue but did not seek legal help

While this case did not turn out as the patient may have wished, we become aware of a rule that is in place to help patients who may not know at the time but become aware over a period of time.  Time is of the essence and so is your livelihood. If you or a friend are in need of  West Palm Beach personal injury attorneys, contact the offices of Lichtblau & Goldenberg for a consultation today.