What if I didn’t know that I was injured until later?

gavel and moneyWhen you are in a car wreck, you will almost always know the date you were injured because, by their very nature, car wrecks are sudden and obvious events.  But what happens when you are exposed to dangerous chemicals and the symptoms don’t show up until years later?  Or what happens if a doctor leaves a foreign object in your body after surgery and you don’t discover it until years later?  In these cases, courts will give you a reasonable time to file your lawsuit after you discovered that you have a claim for damages.  There are at least two primary ways to keep the statute of limitations open when the injured person does not know they have a claim:  (1) the Discovery Rule and (2) Fraudulent Concealment.

The Discovery Rule

The discovery rule exists in case where you could not reasonably be expected to learn that you were injured by someone else’s actions.  For example, you may have known that you were exposed to a chemical, but you did not know that you were injured until after the two-years expired.  In that case, courts will give you a reasonable time to file suit – not necessarily a full 2 years, but enough time to hire a lawyer and get your lawsuit on file.  (click here for more information about the discovery rule).

HECI Expl. Co. v. Neel, 982 S.W.2d 881, 886 (Tex.1998). “The discovery rule has been applied in limited categories of cases to defer accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to a cause of action. [There are] two unifying principles that generally apply in discovery rule cases. They are that the nature of the injury must be inherently undiscoverable and that the injury itself must be objectively verifiable. [T]he applicability of the discovery rule is determined categorically.” See also Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 531 (Tex.1997).

S.V. v. R.V., 933 S.W.2d 1, 7 (Tex.1996). “An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence. [¶] [T]he ‘objectively verifiable’ element [may be] asserted [when] demonstrated by direct, physical evidence. … Expert testimony [alone does] not supply the objective verification of wrong and injury necessary for application of the discovery rule.”

Fraudulent Concealment

In the law, there is a difference between simply keeping quiet about your own negligence and actively deceiving others about your mistakes.  For example, if a doctor makes a mistake during surgery and then lies to the patient about what happened, he may have committed fraudulent concealment that could extend the statute of limitations until the victim learns or should have learned that they have a claim.  This sounds a lot like the discovery rule, but it is actually different.  With the discovery rule, the focus is on whether the Plaintiff’s injury was undiscoverable.  In contrast, with fraudulent concealment, the victim knows that she has been injured, but the wrongdoer has actively concealed his mistake or misconduct.  Thus, with fraudulent concealment, the focus is on whether the wrongdoing was actively concealed.  (Click here for more information about fraudulent concealment  Holland v. Thompson, 338 S.W.3d 586, 596 (Tex.App.—El Paso 2010, pet. denied). “Fraudulent concealment works to estop a defendant from asserting limitations as a defense because 'a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run.' Fraudulent concealment tolls the statute of limitations until the injured party, using reasonable diligence, discovered or should have discovered the injury. The elements of fraudulent concealment are (1) the existence of the underlying tort; (2) the defendant's knowledge of the tort; (3) the defendant's use of deception to conceal the tort; and (4) the plaintiff's reasonable reliance on the deception. See also BP Am. Prod. v. Marshall, 342 S.W.3d 59, 67-68 (Tex.2011).

 Overview of Texas Statute of Limitations