How Delayed Discovery of an Injury Can Affect Your Medical Malpractice Claim

Ohio Medical Malpractice Guide

This guide is intended to help you understand the proper steps to take if you think you might be the victim of medical malpractice in Ohio. If you still have questions please contact our office today for a free case review.

    Misdiagnosis is a serious form of medical malpractice that often leads to patients receiving incorrect or delayed treatment for a serious condition. Although we often associate misdiagnosis with cancer cases, there are many other types of life-threatening injuries that are frequently misdiagnosed in the Cleveland area–such as traumatic brain injuries.
    Sometimes referred to by the less-threatening term “concussion,” a traumatic brain injury may go undiagnosed for days, weeks, or even years. In many cases, patients appear fine in the immediate aftermath of a head injury. Only later do they realize something is wrong, and if a doctor’s misdiagnosis is to blame, the victim may have a claim for damages.
    There is, however, something to keep in mind–no pun intended–when it comes to misdiagnosis and delayed diagnosis cases. Ohio has a four-year statute of repose with respect to medical malpractice claims. A statute of repose is not the same thing as a statute of limitations. The latter refers to the normal one-year deadline for filing malpractice claims. But if the malpractice is discovered after the one-year deadline, the victim may still be able to pursue a malpractice claim provided he or she does so within four years of the original misdiagnosis.
    This so-called discovery rule is not quite as simple as it sounds. It only applies when the victim had no knowledge of the injury beforehand–or could not have “reasonably” determined the doctor may have done something wrong at an earlier date. And according to the Ohio Supreme Court, it is not necessary for the victim to “be aware of the full extent” of the injury beforehand, only that some “noteworthy event” occurred that would “alert a reasonable person-patient that an improper medical procedure, treatment or diagnosis has taken place.”

    Discovery Rule Plays Key Role in NCAA Concussion Lawsuit

    The Supreme Court recently weighed in again on the application of the delayed discovery rule in a case that has drawn national attention. In Schmitz v. National Collegiate Athletic Association, a now-deceased college football player sued the NCAA and the University of Notre Dame, alleging he developed chronic traumatic encephalopathy (CTE) and other impairments as the result of multiple traumatic brain injuries he sustained while playing college football for Notre Dame in the mid-1970s. The lawsuit basically accuses the NCAA and the school of failing to “notify, educate, and protect” the decedent about the risks of multiple head injuries at the time he played.
    The decedent did not receive his CTE diagnosis until 2012. But the NCAA and Notre Dame argued the limitations period should have started to run–and thus expired–back in the 1970s when the original football injuries occurred. The Supreme Court disagreed with that reasoning, noting that “head injuries, including concussions, are an inherent part of football.” Here, the decedent allegedly suffered a “latent” injury–in the form of CTE–that was not reasonably discovered until 2012. So that was the point when the clock started to run on the statute of limitations.
    Now, it should be noted the Schmitz case is not about medical malpractice, although the Court applied its malpractice decisions in assessing the discovery rule. There is still a strict four-year statute of repose applicable to traditional malpractice claims. So if you have any reason to suspect you are the victim of a misdiagnosed traumatic brain injury, you need to contact a qualified Cleveland medical malpractice attorney as soon as possible. Contact Tittle & Perlmuter at (216) 308-1522 if you need help today. We serve clients in Cleveland, Lakewood, Elyria, Chardon, Sandusky and surrounding areas.

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