Indiana medical malpractice lawyer discusses another patient's case dismissed because the patient did not file her claim within the two-year statute of limitations.
This has been an all too frequent occurrence; a patient's medical malpractice case is not heard on the merits and is dismissed because the case was not timely filed. I discussed this issue here, here and here.
On December 27, 2013, the Indiana Court of Appeals affirmed another dismissal of a medical malpractice case, which was filed 25 months after the alleged negligent procedure. Let's take a look at the facts in this case.
In June 2010, a doctor placed a spinal cord stimulator in a patient.
Following the surgery, the patient called the doctor's office a number of times complaining of pain.
In late July 2010, the patient went to the ER and the ER doctor and a wire from the stimulator protruded out of the patient's body.
The patient was admitted for an infected stimulator lead.
In August 2010, the infected spinal cord stimulator was removed.The patient saw the doctor monthly through December 2010.
In April 2012, the patient filed a petition with the court requesting leave to preserve her testimony by deposition because she was terminal.
The patient was deposed in June 2012.
In July 2012, the patient filed her proposed complaint in the Jennings County Circuit Court.
In August 2012 (2 years and 2 months after the procedure), the patient filed her proposed complaint with the Indiana Department of Insurance. The filing of the proposed complaint is how a patient begins a medical malpractice action.
The appellate court affirmed the trial court's dismissal of the action because the patient had to file her proposed complaint in June 2012, or at the latest July 2012, two years after the patient learned in the ER that the spinal cord stimulator was infected.
Indiana's occurrence based statute of limitations is very strict and if a claim is not properly filed within the two-years, a jury will not be allowed to decide the case on its merits.