O'Brien and Ryan, LLP - Attorneys at Law
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Discovery Rule in New Jersey Does Not Toll Statute of Limitations Pending Review of the Medical Records

The New Jersey Supreme Court recently held that the discovery rule – which can delay the accrual date of a medical malpractice action until a party discovers or should have discovered an actionable claim – is not a license for plaintiff's attorneys to endlessly search through their client's medical records prior to filing suit.

A 78 year old gentleman was recuperating at a rehabilitation facility in New Jersey. On April 15, 1999, fearing nurses were not suctioning his lungs as they should have, this gentleman passed a note to a friend asking that he be transferred out of this rehab facility. The next day the transfer to another rehab facility was arranged, but this gentleman died the next day.

The administrator of this gentleman's estate did not file a medical malpractice suit until April 26, 2001, nine days after the two year statute of limitations expired. The administrator followed his attorney's advice that he should obtain the medical records prior to filing suit. Lawyers for the rehab centers argued that the Complaint should be dismissed because the administrator should have known about a possible claim based on the note two days prior to death. The administrator's attorney argued that his client needed time to consult the medical records and as such the discovery rule should apply. The administrator's claims against the initial rehab center where his friend was residing were dismissed. Subsequent argument is necessary to determine the status of claims against the rehab center where the gentleman was transferred.

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