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Timing of wrongful death claim disputed

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In a wrongful-death claim filed nearly five years after a nursing home death, the Indiana Supreme Court is considering whether in instances of fraudulent concealment the two-year limitation clock starts over or if giving plaintiffs “reasonable time” to file is an acceptable standard.

The five justices pressed opposing counsel on the concept of reasonable time and fairness during oral arguments Dec. 5 in Virginia E. Alldredge and Julie A. Luker, as co-personal representatives for the Estate of Venita Hargis v. The Good Samaritan Home, Inc., 82S01-1305-CT-363.

At issue is whether the doctrine of fraudulent concealment applies to nonclaim statutes. If so, does the plaintiff have a reasonable time to bring a claim or does fraudulent concealment toll the statute of limitations for two years?

Venita Hargis’ family was told three years after her death that the injury that led to her death was not because she fell, as The Good Samaritan Home had claimed, but was actually caused by another resident attacking her.

The plaintiffs filed a wrongful-death complaint against Good Samaritan, but the Vanderburgh Superior Court dismissed the claim as untimely. On appeal, the Indiana Court of Appeals reversed, ruling the estate has a full two-year period to file after the discovery of the wrongful death when the cause of the death has been fraudulently concealed.

Before the Supreme Court, the estate’s attorney, Robert King, argued the court should adopt a “bright line rule” by setting a specific deadline for wrongful-death claims to be filed in instances of fraudulent concealment.

Attorney Danny Glass, representing Good Samaritan, countered that the plaintiffs were making a bald-faced assertion that they were entitled to two years. He told the court the standard of reasonable time should remain in place.

After Hargis died Nov. 26, 2006, the nursing home told the family she had fallen and hit her head. However, on Nov. 24, 2009, family members were told by a former employee of Good Samaritan that their mother’s fatal head injury was the result of her being attacked by another resident.

The family subsequently filed a complaint Oct. 27, 2011, asserting the nursing home had been negligent and had fraudulently concealed the true cause of Hargis’ death.

Justice Robert Rucker quizzed Glass on what should happen when fraudulent concealment is discovered after the wrongful death filing time period has expired. He repeatedly asked the question, interrupting the Evansville attorney and pushing him to provide an answer.

“What should happen?” Rucker asked. “You mentioned earlier that it’s not tolling, it’s equitable something or other, and I’m asking you how does that play out?

Glass responded that once the plaintiffs find out, they would have a reasonable time to bring their claim. That i equitable, he said, and will not provide more of a remedy than is needed.

To King, Rucker asked why giving a plaintiff two years to file was better than using the reasonable time standard.

King responded that not granting a specific deadline in cases of fraudulent concealment would reward the parties who hide their wrongful conduct.

Rucker interjected the court was not rewarding the defendants. The Supreme Court could grant the plaintiffs the right to pursue the case, but he wanted to know why two years was better.

Pointing to the medical malpractice case Van Dusen v. Stotts, 712 N.E.2d 491, 497 (Ind. 1999), King noted the opinion called for a set period of time to file a claim. Doing so avoids what Judge John Baker referred to in his opinion in Alldredge as the hairsplitting to determine what the deadline for filing would be.

“In essence, you’re starting from scratch just like you would be if it had never been concealed,” King said. “You get your full two years. And that’s what we’re saying about folks who have been lied to, why should they be punished with a shorter period of time?

Picking up on Rucker’s line of questioning, Justice Loretta Rush asked why a reasonable time would be shorter.

King responded that caselaw shows a reasonable time standard is “never good enough.”

After the oral arguments, King filed a notice of additional pertinent authorities and cited cases supporting his argument for two years rather than reasonable time. For example, Burks v. C.H. Rushmore, 534 N.E.2d 1101 (Ind. 1989), does not grant the full statutory period when fraudulent concealment is an issue.

In its opinion, the Court of Appeals relied upon Van Dusen. There, the Supreme Court granted another two years to file a claim in cases of medical malpractice where the long latency period of the medical condition prevented the patient from discovering the physician’s malpractice.

Accordingly, the Court of Appeals concluded when someone fraudulently conceals the existence of a wrongful death beyond the Wrongful Death Act’s two-year limitations period, the family can file a claim within the next two years.

Justice Steven David and Chief Justice Brent Dickson asked Glass how the shorter period that Glass was advocating for was fair when the plaintiffs would have had two years if not for the concealment.

Glass pointed to the Court of Appeals ruling in Tomika Johnson, et al. v. David Sullivan, M.D., et al., 82A05-1102-MI-108. In a footnote, the court noted no claimant in any Indiana case has ever been given a full two years to file a complaint following the discovery of concealment.

Justice Mark Massa then broached the issue of fairness, asking why wrongful death should be different from medical malpractice claims in terms of fraudulent concealment.

“I don’t think it is different,” Glass replied. “In medical malpractice cases where fraudulent concealment has been an issue, they haven’t gotten two years. In the cases where they got two years, fraudulent concealment wasn’t even an issue.”

Dickson asked King if he disagreed with Glass’ response to the question from Massa.

Again, King pointed to Van Dusen, which left for another day the question of how to handle reasonable time in medical malpractice cases within the doctrine of fraudulent concealment. Apparently, he told the court, that day might have arrived now.

King also responded to Glass’ reply to Justice Rucker’s question on what should happen once fraudulent concealment is discovered. The plaintiffs’ attorney described Glass’ solution as rushing to the courthouse without doing due diligence or collecting facts and evidence. Lawyers and litigants, he said, ought to have adequate time to research their claims, especially three years after the incident when witnesses have moved away.•

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  1. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  2. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  3. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

  4. OK so I'll make this as short as I can. I got a call that my daughter was smoking in the bathroom only her and one other girl was questioned mind you four others left before them anyways they proceeded to interrogate my daughter about smoking and all this time I nor my parents got a phone call,they proceeded to go through her belongings and also pretty much striped searched my daughter including from what my mother said they looked at her Brest without my consent. I am furious also a couple months ago my son hurt his foot and I was never called and it got worse during the day but the way some of the teachers have been treating my kids they are not comfortable going to them because they feel like they are mean or don't care. This is unacceptable in my mind i should be able to send my kids to school without worry but now I worry how the adults there are treating them. I have a lot more but I wanted to know do I have any attempt at a lawsuit because like I said there is more that's just some of what my kids are going through. Please respond. Sincerely concerned single parent

  5. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

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