Torts II

Accrual

Usually a claim accrues at the time of the injury.

Discovery Doctrine

Under the discovery doctrine, the cause of action accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury.

The majority applies the discovery doctrine in all medical malpractice cases.

Under the discovery doctrine, the claim accrues when the plaintiff first discovers some form of actionable harm, not when he learns the fullest manifestation of the harm.

  • This is excepted to in asbestos cases, where a plaintiff can sue again when diagnosed with a separate injury.

If a tort is continuing—such as continuing treatment in medical malpractice or in continuing relationships with domestic violence—the claim accrues when the tort ceases to continue.

If the injury happened in one state but suit is brought in another, choice of law rules provide that the statute of limitations in the state where the suit is filed is used.

Borrowing Rule

Most states have "borrowing" rules, which say that if a claim arises outside of the forum state, the shorter of the states' statutes of limitations will be used.