When does the malpractice tort clock start ticking?

When it reached the Massachusetts Supreme Court, the case of Franklin v Albert [1] asked a specific question: how long after an alleged medical error can the person who claims injury file and pursue a malpractice suit? The question and the Massachusetts court's answer have gained importance in an era of widespread screening for asymptomatic disease. If a patient suffers harm as the result of an error in prescribing or a mistake during surgery, that harm is known to the patient or others soon afterward, certainly well before the time limit expires for filing personal injury claims in most jurisdictions. But if a mammogram, say, or a lung CT is misread as negative for cancer, that person has no way of knowing about the mistake, perhaps not until he or she develops symptoms. If the individual who was tested develops the disease years later—as happened to Peter Franklin—can he or she still sue the radiologist who misread the image? Within how many years after the x-ray or other scan took place must the claim be brought? That is the question that Franklin v Albert asked the court. Peter Franklin's Case Peter Franklin was a second-year medical student when he checked into Massachusetts General Hospital in January 1974 to have his wisdom teeth extracted under general anesthesia. He was experiencing some chest pain at the time, so a chest x-ray was ordered. Franklin underwent the oral surgery and was discharged 2 days after his admission by Thomas Albert, a resident, who noted on the discharge summary that Franklin's presurgery chest x-ray had been normal. In January 1978, Franklin returned to Mass General for a chest x-ray, this time because he had flu-like symptoms. On this occasion, the x-ray showed " an enormous tumor filling Peter's chest, compressing his lungs from the middle and pushing out ward " [2]. Franklin was diagnosed with Hodgkins disease. Surprised that the disease had progressed to such an advanced stage without detection, Franklin's father, a physician who was also on staff at Mass General, had 1 of the radiologists pull his son's 1974 x-ray. Not only did this radiologist find evidence of a mass in the earlier film, he found that the radiologist who had read it in 1974 had also noted " an apparent left superior mediastinal widening " and had recommended further evaluation of the abnormality [3]. Peter Franklin's disease, which might have been …