Discovery rule does not toll statute of limitations when plaintiff is in possession of medical records identifying a party prior to the expiration of the statute of limitations.

The Appellate Division upheld the dismissal of the plaintiff's wrongful death complaint because it was filed beyond the applicable statue of limitations. The court rejected the plaintiff's argument that the discovery rule should apply because the plaintiff was supplied a copy of the medical records which mentioned the physician's name on several occasions. Thus, the identity of the defendant physician and his involvement in the case was known to the plaintiff. Accordingly, the court held that the plaintiff could not assert that he was unaware of a potential theory of liability until after the limitations period expired. This case illustrates a plaintiff's obligation to exercise due diligence.

Case Law Alert - 1st Qtr 2010