What
is the “Discovery Rule” and how is it applied in medical negligence
cases.
The discovery rule was evolved by the
courts in the United States because it was found that the claim lodged by the
complainants in cases involving acts of medical negligence were getting
defeated by strict adherence to the statutes of information. In Pennsylvania,
the discovery rule was adopted in Ayers v
Morgan. In that case, a surgeon had left a sponge in the patient’s body
when he performed an operation. It was held that the statute of limitation did
not begin to run until years later when the presence of the sponge in the
patient’s body was discovered. In West Virginia, the discovery rule was applied
in Morgan v Grace Hospital Inc. In that case, a piece of sponge had been left in the wound during a surgical
operation but its presence in the body did not come to light until 10 years
later. The court rejected the objection of limitation and observed:
“It
simply places an undue strain upon common sense, reality, logic, and simple
justice to say that a cause of action had “accrued” to the plaintiff until the
X-ray examination disclosed a foreign object within her abdomen and until she
had a reasonable basis for believing or reasonable means of ascertaining that the foreign object was within her abdomen as a consequence of the negligent
performance of the hysterectomy.”
Again, the court observed:
“We
believe that the ‘discovery rule’ as stated and applied in cases cited above
represents a distinct and marked trend in recent decisions of appellate courts
throughout the nation.”
In Idaho, the
discovery rule was invoked in Billings v
Sisters of Mercy of Idaho. The facts of that case were that the plaintiff
underwent a surgical operation in 1946. A sponge was left in the wound when the incision was closed. The same was discovered in the patient’s body in 1961. During
the intervening period, the patient sustained considerable suffering, during
which she consulted various physicians. After reviewing numerous authorities at
great length, the court cast aside the earlier doctrine, adopted the discovery rule, and observed:
“In reality, the ‘general rule’ has little to recommend it. It is neither the
position of a majority of all jurisdictions nor it is firmly based on considerations
of reasons of justice. We will, therefore, adhere to the following rule: where
a foreign object is negligently left in a patient’s body by a surgeon and the patient
is in ignorance of the fact, and consequently of his height of action for
malpractice, the cause of action does not accrue until the patient learns of,
or in the exercise of reasonable care and diligence should have learned of the
presence of such foreign object in his body.”
The discovery rule
serves an important purpose in protecting patients who are victims of medical
negligence. The rule is particularly important in medical negligence cases
because the patient often will not discover the negligence or injuries until
years after the act of negligence. Where the baby was born without adequate resuscitation
after birth in absence of a pediatrician and nothing was forthcoming about Apgar (a
test usually given to a newly born baby, once at one minute after birth and
again 5 minutes after birth) score of the baby after birth, how much time the baby
did not cry, the period of resuscitation, etc. It was an inadequate attempt of
resuscitation made by OP, in absence of a pediatrician/neonatologist. Thus, it
was the deficiency in service and an act of omission, for which OP liable.
Thus, the complainant was suffering from the time of birth of her child and
subsequently noticed defects during the developmental stage. The complaint was
filed after 5 years, but it was a continuous cause of action.
If the effect of negligence on the
doctor’s part or any person associated with him is patent, the cause of action
will be deemed to have arisen on the date when the act of negligence is latent,
then the negligence was done. If, on the other hand, the effect of negligence
is latent, then the cause of action will arise on the date when the patient or
his representative-complainant discovers the harm/injury caused due to such an act
or the date when the patient or his representative-complainant could have, by
exercise of reasonable diligence discovered the act constituting negligence.
Where surgery for removal of gall
bladder stone was done in 2006 and subsequently on suffering severe abdominal
pain patient had to undergo a second surgery in another hospital in 2012 when
some stones were found in the gall bladder. Stones normally form in due course
and if found after 6 years, it cannot be presumed that they were left in first
surgery. Effect of so-called negligence not latent and complaint about any
medical negligence could have been filed only within a period of 2 years from
the date of the first surgery, i.e., the limitation period prescribed under section
24A of the Consumer Protection Act, 1986.
Published by: Sunil Dahiya
+91-9999-1717-95
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