What Is the Discovery Rule in a South Carolina Medical Malpractice Case?

What Is the Discovery Rule?

If you have been injured because of another person’s negligence or wrongful conduct, you are entitled to file a personal injury lawsuit to recover compensation for:

• Your injuries,
• Damage to your property,
• Lost wages,
• Mental anguish, and
• Many other forms of damage.

However, you must act within the time allowed by South Carolina law. This time limit is called “statutes of limitations.” For personal injury claims, you generally have three years to file your lawsuit, unless your injuries were caused by a governmental employee or entity, in which case you have only two years to file your lawsuit. Personal injury lawsuits include claims based on:

• Car wrecks/collisions,
• Slip and fall accidents,
• Premises liability,
• Wrongful death actions,
• Product liability, or
• Medical malpractice.

See S.C. Code §§ 15-3-530(5) and 15-3-545.

Often, it is easy to know when the statute of limitation begins to run. If you break your leg in a car wreck, the statute of limitations begins to run on the date of the accident.
However, sometimes, the injury is not known at the time of the occurrence. For example, if you undergo surgery and the surgeon accidentally leaves a surgical sponge in your body, you may not know or experience symptoms for several months after the surgery. In that circumstance, the statute of limitations begins to run when you discover your injury. That legal doctrine is called the discovery rule. Here is some quick information on the discovery rule.

Discovery Rule specifics in South Carolina

As noted, the discovery rule provides that any statute of limitations does not begin to run until the victim learns of his or her injury/injuries OR until he or she reasonably should have learned of the injury. The South Carolina Supreme Court phrased it this way:
“The statute [of limitations] runs from the date the injured party either knows or should have known by the exercise of reasonable diligence that a cause of action arises from the wrongful conduct.”
See Dean v. Ruscon Corp., 468 S.E.2d 645 (1996). In general, the idea of “reasonable diligence” means that when you learn of facts sufficient to suggest that you might have been injured, you have an obligation and duty to conduct some reasonable investigation. Take the surgical sponge example again: when you begin to suffer pain or maybe begin to suffer fevers or other symptoms of an infection, you have some facts that indicate there might be a problem. You must be reasonably diligent in investigating the cause of the symptoms.
Once you are in possession of sufficient facts that you have been injured or that some right of yours has been invaded or that some claim against another party might exist, the statute of limitations begins to run. You do NOT have to know the full extent of your injuries or know the identity of the person who is at fault. Rather, once you have sufficient facts, you must investigate and then file your personal injury lawsuit within the statute of limitations.
In our example, your investigation might include going to see your family doctor to seek treatment for the pain and other symptoms. Presumably, your family doctor would notice that the surgery scar/wound is not healing correctly and that an infection has begun and more. In investigating the cause of your symptoms, your doctor is likely to discover the surgical sponge.  By this method, you have been diligent in investigating your injury and now know the extent of your injury and who is at fault.

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