When someone is injured in an accident it is not uncommon for them to consider filing a personal injury lawsuit to recover damages from an at-fault party. Personal injury lawsuits must, however, be filed within a certain amount of time in order to be effective.

Most times, failure to file a personal injury lawsuit within the applicable statute of limitations will act as a complete bar to recovery. There are some situations, however, where the statute of limitations can be extended. One such situation is when an accident victim doesn’t know that they’ve been injured until after the statute of limitations has run. In these cases, an accident victim may be able to utilize their local jurisdiction’s discovery of harm or delayed discovery rule.

What Happens When The Victim Doesn’t Know They Are Injured?

Every accident is different. Some will inflict serious harm that is immediately noticeable. Car accidents, for example, often inflict injuries that are immediately noticeable. When a victim is involved in a serious accident, they will generally undergo a medical evaluation to determine the extent of his or her injuries.  Others will cause harm that may not be noticed until days, months, or years later. Let’s say that a woman chooses to have a hysterectomy because cancer runs in her family. The surgeon, somehow losing focus, screws up and leaves a sponge, towel, or medical instrument in woman’s body. The woman did not know about that harm until years later when a mysterious infection set in.

In the former scenario, the accident victim will be required to file a personal injury lawsuit within the standard statute of limitations. In the latter scenario, the woman would probably be able to argue that she did not discover the harm until after the statute of limitations expired.

Injuries caused by exposure to toxic chemicals, medical malpractice, and harmful workplace environments may also trigger discovery of harm exceptions to traditional statutes of limitation. What is the rationale for allowing an accident victim to extend the statute of limitations in situations like these? A statute of limitations can only run when a cause of action exists. If a victim does not know that they have suffered an injury or harm, there can be no cause of action. It is only when the harm is discovered – or should be discovered through reasonable investigation – that the cause of action forms.

Options When Statute of Limitations Has Expired

When a personal injury accident victim [plaintiff] discovers a harm after the statute of limitations has expired, he or she will be required to persuade the court to allow a claim. In California, a plaintiff has one of two options.

First, the plaintiff can opt to prove that they did not discover the harm and did not know of facts that would have caused a reasonable person to suspect that they had suffered harm because of the defendant’s conduct. Alternatively, a plaintiff can prove that they did not discover a harm and a reasonable and diligent investigation would not have indicated that the defendant’s conduct contributed to the harm.

Essentially, victims must be able to establish that they were unaware of their injury, and:

1. Had no reasonable reason to believe that they had been injured; or
2. Could not have learned about it at the time through a diligent investigation.

The takeaway here should be that courts will be more receptive to situations where a plaintiff could not have known about an injury, even if they did a thorough investigation. If a plaintiff had even the slightest inclination that they have suffered an injury or harm, that could spell disaster for any future litigation outside of the statute of limitations.

Once the local jurisdiction’s discovery of harm rule has been applied the statute of limitations will begin to run. Some states, including California, shorten the statute of limitations in these cases. There, the traditional statute of limitations in bodily injury cases is two years from the date of the accident/harm. In situations where the discovery of harm is delayed, the statute of limitations is one year from the date of discovery.

The time period in which a personal injury claim for damages may be filed is often not given much consideration. However, failure to file a claim within the appropriate time frame could potentially prevent a lawsuit for personal injury damages from being successful. If a plaintiff discovers an injury or harm after the initial statute of limitations has expired, it is vital to document each and every step moving forward. In most cases, a plaintiff will be required to establish that (1) they had no reason to believe that that they suffered an injury at the time of the negligent act or conduct, or (2) a reasonable investigation would not have led to a discovery of the harm at that point in time. Gathering evidence to support those arguments will make or break a motion to extend the statute of limitations.

If you have more question, find a good personal injury for assistance.