At Drug and Device Law:

In Greer v. Medtronic, No. 4;08CV042-P-B, slip op. (N.D. Miss. Apr. 25, 2008), plaintiff pleaded a host of product liability claims against Medtronic relating to an implantable cardiac defibrillator. But the decedent had died on January 22, 2005, and plaintiff didn’t file her complaint until February 20, 2008, seemingly a month after the three-year statute of limitations had expired.

Plaintiff insisted that her complaint was timely, because she was not aware of the likely cause of the decedent’s death until February 21, 2005, when she received a letter from Medtronic allegedly alerting her to a possible defect in the defibrillator.

The court held that, after Lowery, plaintiffs must still be aware of both the injury and its possible cause for the statute of limitations to begin to run.

But, said the court, in a case pleading wrongful death caused by the alleged failure of a defibrillator, the death itself put plaintiff on notice of the injury’s possible cause. Plaintiff knew the decedent "died from heart failure on January 22, 2005. At that moment, with the exercise of reasonable diligence, she could have discovered that she probably had an actionable injury or knew or reasonably should have known that some negligent conduct had occurred." Greer, slip op. at 6. The statute of limitations thus began to run on the date of death and expired three years later.

What a terrible ruling. The Court is holding, in essence, that, if a person dies while receiving any medical care at all, they should automatically start suing every medical provider and manufacturer involved in their care. If they don’t, and malpractice is later discovered, they won’t be able to sue later.

The discovery rule does not simply save allegedly untimely claims by plaintiffs. It safeguards rights in a way that does not require a person sue every time an adverse event occurs. The Greer court just said exactly the opposite: every time something bad happens, you must sue everyone immediately, regardless of the evidence you have.

I don’t think that’s good policy for anyone.