In a Delaware Medical Malpractice Case, When Does the Injury Occur - When the Negligent Act Occurs vs. When the Harm First Manifests Itself?
When there’s been a delay in diagnosing cancer, and the delay is caused by negligent error (failure to adhere to the standard of care), the question frequently comes up when does the 2-year statute of limitations begin? Under Delaware’s Medical Negligence Act, a lawsuit cannot be brought against a health care provider more than 2 years from the date upon which the injury occurred. As I’ve explained in a previous article, if the injury was unknown to the patient and could not have been discovered by the injured person during the 2-year period, the statute gives them 1 additional year within which to sue, even if they don’t discover it during the 3rd year.
Think that’s a bad result? It gets even worse. Imagine a situation where the doctor negligently failed to diagnose cancer, and the damage doesn’t show up until much later, such as when the cancer metastasized. The 2 years begins to run on the date of the misdiagnosis. The Court has come out and said that it may seem harsh that a statute of limitations begins to run on a misdiagnosis from the date of that misdiagnosis when the patient is unaware of the allegedly negligent error causing the injury. At the same time, the Court pointed out that this harshness is lessened by giving the patient 1 additional year to bring a suit in cases where the patient did not have knowledge of the claim until after the two-year period expired.
The Court also makes a point of distinguishing “manifestation of injury” from the definition of “injury.” Under the statute, the injury was the delay in treatment, and that injury occurred on the date that the cancer could have been diagnosed but was not. The metastasis of the cancer is considered to be a manifestation of the damage caused by the injury, i.e., the delay in treatment caused by the failure to diagnose the cancer earlier on
Some like to refer to the term “SOL” as statute of limitations. When I see things like this, I prefer to think of it as “ .... out of luck.”
If you or a family member is the victim of a misdiagnosis, you should consult with a medical malpractice attorney without delay.
