Statute of Limitations is Tolled When the Plaintiff Produces Prima Facie Evidence to Raise Fraudulent Concealment as a Material Issue of Fact
Fjetland, Gale M.
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The Texas Court of Civil Appeals in Nichols v. Smith held that where a plaintiff produced prima facie evidence of fraudulent concealment, the statute of limitations will be tolled. The author supports adopting another tolling rational: the discovery rule. Under the discovery rule, the statute of limitations begins to run only when the injured party discovers the injury. The author suggests that the Texas Supreme Court, on appeal, should adopt the discovery rule in Nichols because the discovery aids an injured patient by tolling the statute of limitation until the injury is discovered. Similarly, the discovery rule protects physicians because the patient must prove that he or she was diligent in discovering the injury, as well as proving negligence on behalf of the physician.