I have written many blog posts about victims of Indiana medical malpractice claims having their cases dismissed because they have blown the statute of limitations. Now the Court of Appeals ruled on another case finding that the injury victim cannot go forward with their medical malpractice claim for failing to file a the initial claim with the Indiana Department of Insurance within 2-years.
In a nutshell, Indiana has a 2-year statute of limitations, which STARTS on the day the malpractice happened. In most other negligence or tort cases, the limitations period begins to runs on the day that the injured person discovered the malpractice. Many people get confused by this distinction.
In Indiana Malpractice claims, the statute of limitations is called an occurrence based limitations period. There are a couple of ways to get around the issue but that requires specific facts. For instance, if the injured person did not learn of the malpractice within the initial two year- he will have two years from the date he/she learned of the problem, however, its pretty confusing.
A patient had bladder cancer. One of the ways a urologist follows up with bladder cancer patients is to look in the bladder with a scope, called a cystoscope. Like all things that go into the body, the tube needs to be disinfected. The urologist used a chemical to disinfect the cystoscope that cannot be used on patients who have bladder cancer.
The patient followed up with doctor on regular intervals and the doctor continued to use the bad disinfectant. After the first scope, the patient's itched in the bladder area. Each time the patient was scoped, he had an allergic reaction that became worse and worse, and eventually he had to be hospitalized a couple of times.
January 2009: was the last date the urologist used the disinfectant.
March 2009: the patient went to allergist and learned he had severe allergy to disinfectant.
March 2011: filed complaint with the Indiana Department of Insurance
The doctor asked the court dismiss the malpractice case because the patient learned of the malpractice within 2-years of the treatment. He learned of the problem in March 2009, two months after the last treatment of January 2009. So, he had 22 months to file the claim within the statute. Obviously, the patient misunderstood the limitations period because he filed the claim within 2-years of his visit to the allergist, and 26 months after the doctor's malpractice occurred.
Here is the moral of the story. If you believe that you or a loved one has been a victim of medical malpractice in Indiana, you need to consult with a lawyer immediately. Most malpractice lawyer will consult with a potential client for no charge, and explain their legal rights. If the patient in this story would have met with a lawyer in March 2009 or shortly thereafter, he would have learned that the initial claim needed to be filed by January 2011.