The Discovery Rule

This is the 6th in a series of articles about Mississippi statutes of limitation found in Title 15, Chapter 1, of the Mississippi Code. You can read the other articles here .

This post explains the “discovery rule” and its implications in determining when a statute of limitation begins to run.

Generally speaking, the discovery rule means a statute of limitation does not begin to run until the injured party knows, or should have known, that he had a cause of action.

Mississippi law recognizes the discovery rule with respect to certain causes of action. But, there are many statutes of limitation that begin to run regardless of whether the plaintiff knew, or should have known, that the cause of action existed.

As discussed in an earlier post , Section 15-1-49 of the Mississippi Code is known as the general, or “catch-all”, statute of limitation. It applies to all Mississippi causes of action for which a different statute of limitation has not been established by the legislature.

If a claim is subject to Section 15-1-49, and if the claim involves “latent injury or disease,” then the cause of action does not accrue (and the statute of limitation does not begin running) “until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.”

There is no “bright-line” rule for determining whether an injury is “latent”. It has been said that an injury is latent if:

(i) the nature of the wrongdoing is secretive or inherently undiscoverable, or

(ii) it would be unrealistic to expect a layman to perceive the injury at the time of the wrongful act.

Medical Malpractice

Section 15-1-36 establishes the statute of limitation for most medical malpractice claims.

The statute of limitation is two years from the date the malpractice was, or with reasonable diligence might have been, first known or discovered, but in no event more than seven years after the malpractice occurred.

There are two exceptions, however:

(a)      In the event a foreign object introduced during a surgical or medical procedure has been left in a patient’s body, the cause of action shall be deemed to have first accrued at, and not before, the time at which the foreign object is, or with reasonable diligence should have been, first known or discovered to be in the patient’s body.

(b)      In the event the cause of action shall have been fraudulently concealed from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence should have been, first known or discovered.

In defamation cases, the Mississippi Supreme Court generally follows the “single publication rule”. That rule states that a cause of action for defamation accrues as soon as the defamation is published.

But, there is an exception to the single publication rule. It applies when the publication was secretive or inherently undiscoverable so that the plaintiff did not know, or with reasonable diligence could not have discovered, that she had been defamed.

In that situation, the discovery rule tolls the statute of limitations until such time as the plaintiff knows or should have known of the defamatory statement.

Note : The cases applying to the discovery rule in defamation cases have involved libel, as opposed to slander. Logic would dictate that the discovery rule would apply equally to slander, but the author of this post has not found a Mississippi case holding so.

Pursuant to Section 15-1-67, if a person liable on a personal action fraudulently conceals the cause of action from the plaintiff, the cause of action is deemed to have first accrued when the fraud is, or with reasonable diligence could have been, discovered.

The two-part test for proving fraudulent concealment is this:

(1) The defendant must have taken some affirmative act that prevented discovery of the claim, and

(2) The plaintiff must have acted with due diligence to discover the claim but was unable to do so.

In addition, Section 15-1-9 (action in equity to recover land) and Section 15-1-36 (medical malpractice) include their own fraudulent concealment provisions.

If you believe you have a claim, do not let the statute of limitation run. Contact the Panter Law Firm for a consultation. 601-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

www.craigpanterlaw.com

Craig Painter

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