Failure to Diagnose and the Discovery Rule in Medical Malpractice Claims

Discover Rule Critical in Misdiagnosis CasesThere are many provisions of the New Mexico Medical Malpractice Act that are patently detrimental to the care and safety of patients.  Among the most damaging provisions of the Act is the exception to the discovery rule allowed “qualified healthcare providers.”

What is the Discovery Rule?

The discovery rule basically creates an exception to the normal commencement of the statute of limitations.  Typically, the statute of limitations on personal injury claims, including those for medical malpractice, begins to run on the date of the alleged negligent act.

The discovery rule creates an exception so that the statute of limitations does not begin to run until the patient discovers the injuries resulting from the alleged negligence.  The rule is particularly important in medical malpractice cases because the patient often will not discover the negligence or injuries until years after the act of negligence.

Though not limited to diagnostic error cases, the issue of the discovery rule comes up regularly in failure to diagnose cases.  One common example is the failure to diagnose cancer.  Clearly, a patient will not know of diagnostic errors until such time that a diagnostics report is properly read.

It is manifestly unfair to start the limitations period at the time of negligence when the harm is not manifested or discoverable by the patient until years later.

Exception for Qualified Healthcare Providers

However, that is exactly what the New Mexico Medical Malpractice Act allows, to the detriment of injured patients.

Specifically, the discovery rule does not apply to qualified healthcare providers.  “Qualified healthcare provider” status basically requires that the medical provider to sign up and comply with the rather nominal insurance requirements established under the Medical Malpractice Act.

Qualified healthcare providers gain all kinds of protections from responsibility for injuries or wrongful death caused by their medical malpractice.  These include caps on damages recoverable in a lawsuit.  These are harsh enough in their own right; the freedom from the discovery rule when it would otherwise apply is disastrous for injured patients and their families.

Harm to Patients Caused by Exception to Discovery Rule

The statute of limitations requires that a suit be filed within a certain period of time.  In medical malpractice cases against private medical providers, the statute of limitations is 3 years.  Missing the statute of limitations bars the claim completely.

Again, the absence of the discovery rule can be disastrous to an injured patient’s rights to recovery.  Unfortunately, the issue comes up regularly in cancer cases.

The failure to diagnose cancer in a timely manner literally means the difference between life and death in many cases.  This is most evident in breast cancer cases.

The survival rate for breast cancer has improved dramatically over the last 30 years.  Early detection is the key to survival.  Late detection can cause both permanent and unnecessary harm or death.

The statistics on survival are remarkable.  According to the American Cancer Society’s survival rate estimates, the survival rates are as follows for the 4 stages of breast cancer:

·         Stage 1 has a 5-year survival rate of 100%.

·         Stage 2 has a 5-year survival rate of 93%.

·         Stage 3 has a 5-year survival rate of 72%.

·         Stage 4  has a 5-year survival rate of 22%.

In a failure to diagnose a breast cancer case, the missed diagnosis may very well not be detected until well after the 3-year statute of limitations.  By the time of discovery of the failure, not only may it be too late to file a claim against the negligent “qualified” healthcare provider but also too late for effective treatment.


Need for Change of the Medical Malpractice Act to Reflect Realities of Diagnostic Error

It is estimated that as many as 80,000 deaths occur each year due to diagnostic error.  Failure to diagnose breast cancer leads the way in medical malpractice claims.  Early detection is key.  Late detection is often catastrophic.


The myth of frivolous medical malpractice lawsuits has shaped the policy of protections for medical providers such as those in the New Mexico Medical Malpractice Act.  What these protections fail to recognize is the pervasiveness of medical negligence with estimates as high as 440,000 deaths per year from preventable medical error.


Medical providers, and more specifically their insurance carriers, are protected at the expense of innocent patients.  This is never more the case than in the protection from the discovery rule for negligent errors in diagnoses.  This protection is manifestly unfair to patients and completely ignores the prevalence of diagnostic errors, the harm to patients, and the impossibility of detection of most such errors, including breast cancer errors, by the patient.

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