Which state's discovery rule and statute of limitation do I use for a personal injury case? 3 Answers as of February 13, 2011My misdiagnoses was discovered in Alabama under the discovery rule, the medical malpractice occurred in Alabama and Michigan. Which state's discovery rule and statute of limitation do I use?
Patrick M Lamar Attorney | Patrick M Lamar
There actually is no "discovery" rule in Alabama. The word discover is used but only in the most narrow sense. You must have been unable to have discovered the malpractice for some good reason like a surgical error only detected in another surgery, instruments left in the body that sort of thing. It cannot be "hey I just thought about this and it is malpractice." Many people think there is a continuing treatment rule in Alabama and there is not. The statute of limitations is two years here but if you could not have discovered the malpractice along the lines I described above, then you have six months from the date of discovery to file suit. However, you may NEVER extend the statute beyond four years regardless of whether you could have discovered the problem or not. There is actually some question as to what happens when you find the malpractice within the two year period and less than six months is left in the period. I am not sure what you mean by your misdiagnosis was discovered in Alabama. If the misdiagnosis occurred in Michigan then the laws of Michigan would apply. You need to consult with a lawyer versed in Medical Negligence immediately. We are available for consultation at no charge if you would like an opinion.
Answer Applies to: Alabama
The Liblang Law Firm, P.C. | Dani K. Liblang
Without having more facts, it is difficult to give a specific answer. That said, assuming that the original injury (misdiagnosis) occurred in Michigan, while you were a Michigan resident, then Michigan's rules are likely to apply. Nevertheless, I would recommend checking with an attorney licensed in Alabama, especially if you are a resident of Alabama. Choice of law and statute of limitations questions are often complicated in these circumstances.
Answer Applies to: Michigan