Michigan City Medical Malpractice lawyer discusses another case where the injured party's claim was barred by the occurrence based statute of limitations barring plaintiff's claim.
In Fengolio v. Brock, the Indiana Court of Appeals affirmed dismissal of plaintiff's medical malpractice claim because of the statute of limitations. I have discussed how strict Indiana medical malpractice statute of limitations is.
Facts of the Case
- The patient was treated by the doctor for depression
- On 3/6/09 the doctor called in a prescription of Celexa for depression
- On 3/16/09 the patient committed suicide
- In 8/09 the patient's family requested the doctor's medical records
- On 3/11/09 the patient filed a medical malpractice claim
- The doctor's lawyer asked the court to dismiss the case because it wasn't filed within 2 years of the alleged medical malpractice (3/6/11)
- The trial court agreed and dismissed the case
The Court of Appeals Agrees with Doctor
Indiana has a two-year occurrence based statute of limitations for medical malpractice cases, which reads as follows. Indiana Code section 34-18-7-1(b) provides:
A claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect
Here, the appellate court agreed that the plaintiff's claim had to be filed by 3/6/11 and filing the claim on 3/11/11 was five days past the deadline. The court said that the alleged malpractice occurred when the prescription was called into the pharmacy. Indiana law is clear, if the alleged medical malpractice is discovered within the two years of the alleged medical malpractice must be filed by two years. On the other hand, if the medical malpractice is discovered after the two year statute of limitations has expired then the injured patient or their family has two years from that date to file a claim.
Indiana medical malpractice law is complex. Statute of limitations issues are always present. If you have any questions about a potential Indiana medical malpractice claim contact our Michigan City medical malpractice lawyer at (219) 874-4878 or fill out the Internet consultation form on the right.