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'Continuing wrong' statute makes malpractice claim timely

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A doctor who was the subject of a malpractice claim due to his patient losing consciousness and causing a crash while driving is not entitled to summary judgment, the Indiana Court of Appeals held.

In Mary Alice Manley and Gary Manley v. Ryan J. Sherer, M.D., and Sherer Family Medicine, No. 59A01-1104-PL-190, Gary and Mary Alice Manley sued Dr. Ryan Sherer following a crash on Nov. 27, 2006, that left Mary Alice Manley with permanent debilitating injuries. She was hit head-on by Sherer’s patient, Kimberly Zehr, who lost consciousness while driving due to a medical condition and the effects of medication prescribed by Sherer.

On Nov. 25, 2008, the Manleys filed a proposed complaint against Sherer with the Indiana Department of Insurance. Sherer filed with the trial court a motion for preliminary determination of law and for summary judgment. The trial court subsequently granted summary judgment to Sherer on all of the Manleys’ claims and directed the entry of judgment in favor of Sherer.

Sherer said the Manleys’ complaint was not timely; the Indiana Medical Malpractice Act sets forth a two-year statute of limitations for claims by victims of alleged medical malpractice. That two-year time frame would have begun on Nov. 21, 2006, when Sherer last treated Zehr. But the Manleys claim that their complaint is saved by the doctrine of continuing wrong.

The COA held that a dispute of fact exists as to whether Sherer’s failure to warn Zehr not to drive while she was under his care constitutes a continuing wrong. Under that doctrine, the statute of limitations would be tolled until at least Nov. 27, 2008, which would make the Manleys’ complaint timely.   

The appellate court also held that because Sherer did not warn Zehr to stop driving altogether, there is a dispute of fact on the element of breach of duty, and Sherer is not entitled to summary judgment as a matter of law on that element. The COA remanded for further proceedings consistent with its opinion.

 

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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