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Counsel That You Can Trust & Depend On


Guy DiMartino
Nov. 4, 2014

Indiana Medical Malpractice lawyer discussed a recent appellate court case that allowed a patient to sue her doctor after 3 decades.

The lesson to be learned by the court's opinion in Houser v. Kaufman is that a lawyer has to look at all the facts to determine if a medical malpractice claim can be brought after the limitations period. Indiana's medical malpractice statute of limitations is one of the stricter limitations periods in the United States because it is an occurrence based period. As a general rule, a victim of medical malpractice must initiate a medical malpractice action within 2 years of the negligent act. Sometimes it's easy to know that malpractice occurred other times it is quite difficult.

Facts of this Case

The facts of this case are quite sad and uncalled for. Plaintiff was born in 1974. The doctor who delivered her was her mother's family doctor and became plaintiff's family doctor until he died in 1981. Shortly after birth, a blood test noted that plaintiff had PKU or phenylketonuria. PKU is a condition where the patient is not able to breakdown phenylalanine, an amino acid. A patient with PKU is able to manage the condition by diet. If you look on a diet soda can you will see a PKU warning.

Because of the undiagnosed PKU, the plaintiff grew up with cognitive impairment and was considered mildly retarded. She gave birth in 2007 and her child had some congenital problems. Eventually, she was diagnosed with PKU and brought a medical malpractice action against the deceased doctor's estate who failed to inform her parents of the PKU.

The defendant doctor's estate moved to have the case dismissed because this medical malpractice case was filed 30+ years after the incident, which is clearly outside the two year period. The trial court denied the motion and the defendant doctor's estate appealed.

Appellate Court's Opinion

The court's analysis began with the acknowledgment that Indiana's medical malpractice statute of limitations is a two-year occurrence based limitations period. So if the patient or the patient's representative learns of or should have known of malpractice within the period, he has to initiate a medical malpractice claim within the two years.

If the patient doesn't learn of the malpractice within the two year limitations period, he has two years from the time it was discovered or should have been discovered. In other words, if there is a missed diagnosis, the limitations period does not run until either the correct diagnosis is made or the patient had enough information to know that there was a misdiagnosis.

The Court of appeals allowed the patient's case to continue even though it was over 30 years before the correct diagnosis of PKU was made.

Indiana medical malpractice law is complex. If you have any questions about a potential medical malpractice case, call our Indiana medical malpractice lawyer at (219) 874-4878 or fill out the internet consultation box to the right.