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Medical Malpractice – Failure to Diagnose

James P. Carey - SiebenCarey "Know Your Rights" AttorneyFebruary 07, 2014

Minnesota’s “damage accrual” standard leaves cancer patients out in the cold. 

In Minnesota, medical malpractice suits must be brought within four years from the date “the cause of action accrues.” Exactly when a cause of action accrues has been the central issue in a number of controversial rulings by the state supreme court. 

The court has ruled that in cases of misdiagnosis, the statute of limitations – that is, the time limit within which one must file a lawsuit – begins to run when “damage accrues” to the patient.

If a doctor fails to diagnose cancer that continues to grow, the court has held that the damage accrues at the time of the misdiagnosis. The court’s “damage accrual” standard means that in every case involving misdiagnosis of a cancer that continues to worsen, the clock starts running on the right to sue even though the victim doesn’t know there’s been a misdiagnosis. Conceivably, by the time the patient learns the awful truth about the cancer, he or she may also learn that the right to sue has vanished. 

The damage accrual standard adopted by Minnesota courts violates basic fairness. Why should the patient be charged with knowledge of an inherently unknowable injury? And why should a negligent doctor benefit from the patient’s lack of knowledge caused by the misdiagnosis? 

Fortunately – at least for plaintiffs in other states – Minnesota’s rule is the exception. Most states follow what is known as the “discovery” rule which means the statute of limitations doesn’t start running until the patient discovers, or should have discovered, the problem. This is a common sense approach – particularly in tragic cases involving the misdiagnosis of cancer. 

One bright spot for patients in Minnesota: the state has a relatively long statute of limitations of four years. Still, this does not outweigh the potential injustice caused by the “damage accrual” standard.

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