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Guy DiMartino
Nov. 4, 2014

Indiana medical malpractice lawyer explains the statute of limitations and the appellate court's ruling reinstating a patient's claim.

On December 30, 2011, the Indiana Court of Appeals reinstated a plaintiff's medical malpractice claim so the injured person can continue to fight for her recovery. The trial judge dismissed the case finding that the plaintiff had filed her proposed complaint with the Indiana Department of Insurance four days late. Under the trial court's analysis the proposed complaint should have been filed by November 21, 2008 as opposed to November 25, 2008. I could see how this could happen because this case wasn't a typical medical malpractice case. The plaintiff was a third party who claimed the doctor's negligent medical care caused another person to crash into her car and cause serious injury. I have posted another blog on the issue of whether a doctor is liable for medical malpractice to third parties who are not his/her patients. Well onto the statute of limitations issue. For medical malpractice, Indiana has a rather strict occurrence based statute of limitations which is codified at IC-34-18-7-1(b), which reads:

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, except that a minor less than six (6) years of age has until the minor's eighth birthday to file.

In light of the draconian nature of the strict occurrence based statute of limitations, Indiana courts have wrestled with cases where the injured plaintiff did not learn of the malpractice until after the two year statute had run. In 2005, the Indiana Supreme court discussed a methodology that courts and lawyers should follow to determine if the medical malpractice statute had run and explained the following:

Initially, a court must determine the date the alleged malpractice occurred and determine the discovery date-the date when the claimant discovered the alleged malpractice and resulting injury, or possessed enough information that would have led a reasonably diligent person to make such discovery. If the discovery date is more than two years beyond the date the malpractice occurred, the claimant has two years after discovery within which to initiate a malpractice action. But if the discovery date is within two years following the occurrence of the alleged malpractice, the statutory limitation period applies and the action must be initiated before the period expires, unless it is not reasonably possible for the claimant to present the claim in the time remaining after discovery and before the end of the statutory period.

The facts of the case suggested that the doctor's negligent medical care happened on November 21, 2008 and the plaintiff would have known of the malpractice before the two-year statute had run. Now there are pretty much two ways that a plaintiff can try to get around the statute of limitations issue and that is (1) fraudulent concealment (a doctor hides the fact of the negligence); and (2) continuing wrong (the doctor continued to treat the patient – thus continuing the malpractice).

So in this case, the plaintiff argued that the statute of limitations should have been continued until November 27, 2008 the date of the car accident because it wasn't until that date that the doctor knew for sure that his patient should not have been driving. The appellate court bought the plaintiff's argument and found that the trial court should not have dismissed the case because under the continuing wrong doctrine, the statute of limitations would have begun to run on November 27th as opposed to November 21 st.

This stuff maybe too technical for some people, however, there is an important lesson to all folks who believe they have been injured by malpractice in Indiana, and that is, they should at least consult with an attorney as soon as the belief arises. Indiana medical malpractice law can be complex. If you have any questions about a potential Northwest Indiana medical malpractice case, you can call our Michigan City medical malpractice lawyer at (219) 874-4878.