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Discovering The Discovery Rule

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Under Wisconsin law, in a medical malpractice case, per the terms of sec. 893.55 (1m), you must start a lawsuit within three years from the date of the injury or your case is forever barred. There is an exception the filing, however, within the three years, and it is called the “discovery rule.” Under sec. 893.55 (1m), (b), a person has “One year from the date the injury was discovered, or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.” There are two other exceptions as well under the discovery rule;

1. If a health care provider conceals from a patient a prior act or omission of the provider which has resulted in injury to the patient, an action shall be commenced within one year from the date the patient discovers the concealment or, in the exercise of reasonable diligence, should have discovered the concealment or within the time limitation provided by sub. (1m), which is later.

2. When a foreign object what has no therapeutic or diagnostic purpose or effect has been left in a patient’s body, an action shall be commenced within one year after the patient is aware or, in the exercise of reasonable care, should have been aware of the presence of the object or within the time limitation provided by sub. (1m), whichever is later.

“The “discovery rule” is so named, because it tolls the statute of limitations until the plaintiff discovers or with reasonable diligence should have discovered that they have suffered actual damage due to wrongs committed by a particular, identified person. Until such a time, parties injured are not capable of enforcing their claims either because they do not know that they have been wronged or because they do not know the identity of the person who has wronged them. Accordingly, discovery in most cases is implicit in the circumstances immediately surrounding the original misconduct,” Claypool v. Levin, 209 Wis. 2d 284 at page 299, 536 N.W.2d 206 (Ct. App. 1995).
Before 1983, the courts in Wisconsin rejected the discovery rule on the basis that such a change in the law should be by legislative action. In 1979, the legislature responded by adopting a discovery rule for medical malpractice claims. It is important to note the “discovery rule” does not apply to non-medical malpractice tort claims. After 1979, the courts in Wisconsin recognized a common law discovery rule for those tort case not already covered by the statutory discovery rule. The rule was created in the case of Hansen v. A.H. Robins Inc. 113 Wis. 2d. 550, 335 N.W. 2d 578 (1983);
“In the interests of justice and fundamental fairness, we adopt the discovery rule for all tort actions other than those already governed by a legislatively created discovery rule. Such tort claims shall accrue on the date the injury is discovered, whichever occurs first. All cases holding that tort claims accrue at the time of the negligent act or injury are hereby overruled.”

The court went on to say;
“Although the discovery rule will allow actions to be filed more than three years after the date of injury, it will not leave defendants unprotected from stale and fraudulent claims. Under the rule a claim accrues when the injury is discovered or reasonably should have been discovered. Therefore, it does not benefit claimants who negligently or purposefully fail to file a timely claim.
The court expanded the scope of the discovery rule in the case of Borello v. U.S. Oil Co., 130 Wis. 2d 397, 388 N.W. 2d 140 (1986). The court held that a “cause of action does not accrue until the nature of the injury and the cause-or at least a relationship between the event and the injury – is ought to have been known the claimant.” at page 315.
The “discovery rule” in Wisconsin allows a person injured as a result of medical malpractice or in other common law tort actions to file a lawsuit beyond the ordinary three year rule under sec. 893.54 and 893.55 for medical malpractice cases. However, one must be very careful when filing a lawsuit beyond the usual three year period, that one can meet the requirements of the “discovery rule” whether it is a medical malpractice case, or common law tort action, and the case is not met with a summary judgment motion to dismiss, for having failed to the file the lawsuit within the ordinary three year period. Tread carefully!

The statute of limitations on personal injury cases as well as medical malpractice matters is complex and strictly adhered to. It is best to consult with an experienced personal injury lawyer. Karp & Iancu, S.C. offers over thirty four years of experience in handling injury cases in Wisconsin.

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