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Doctor’s statute of limitations defense in med mal claim rejected by justices

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A doctor who chose to perform just one biopsy instead of two on a woman who later was diagnosed with cervical cancer is not entitled to summary judgment on his defense asserting the medical malpractice statute of limitations, the Indiana Supreme Court ruled Wednesday.

A routine pap smear performed by Lisa David’s doctor, Dr. William Kleckner, detected abnormalities. The pathologist recommended an endocervical and endometrial biopsy. Kleckner only performed the endometrial biopsy Feb. 27, 2009. Those results “came back clear,” but in September 2009, Lisa David visited another doctor due to pain and discomfort. That doctor found a mass on her cervix. She was diagnosed with cancer, began treatment, but died March 25, 2011.

Sometime in February 2011, David’s husband became suspicious as to why Kleckner did not find any evidence of cancer or a tumor and obtained her medical records. That’s when he discovered Kleckner did not perform the endocervical biopsy. The wrongful death medical malpractice action was brought by Larry David July 1, 2011. The trial court granted summary judgment to Kleckner, who argued the complaint was barred by the statute of limitations.

The justices used their decision in Larry Robert David, II, as Special Administrator of the Estate of Lisa Marie David, Deceased v. William Kleckner, M.D., 49S02-1405-MI-355, to clarify when a party may bring a medical malpractice action by examining caselaw on the matter.

“We conclude that neither Brinkman, Overton, nor Herron should be read to undermine the discovery opportunity element expressly recognized in Manley, Van Dusen and Booth. Thus, in determining whether a medical malpractice claim has been commenced within the medical malpractice statute of limitations, the discovery or trigger date is the point when a claimant either knows of the malpractice and resulting injury, or learns of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury,” Chief Justice Brent Dickson wrote.

Kleckner established that the action was filed by David more than two years after the date of the alleged malpractice, but David is able to show there is a disputed fact as to when his wife could have discovered whether Kleckner’s failure to perform the endocervical biopsy caused or inhibited timely treatment.

“We find that it was not necessarily an unreasonable delay for this action to be commenced on July 1, 2011, and that the plaintiff may be found to have filed within a reasonable time if the trigger date occurred within the statutory window,” Dickson wrote.
 

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  1. Oh, the name calling was not name calling, it was merely social commentary making this point, which is on the minds of many, as an aside to the article's focus: https://answers.yahoo.com/question/index?qid=20100111082327AAmlmMa Or, if you prefer a local angle, I give you exhibit A in that analysis of viva la difference: http://fox59.com/2015/03/16/moed-appears-on-house-floor-says-hes-not-resigning/

  2. Too many attorneys take their position as a license to intimidate and threaten non attorneys in person and by mail. Did find it ironic that a reader moved to comment twice on this article could not complete a paragraph without resorting to insulting name calling (rethuglican) as a substitute for reasoned discussion. Some people will never get the point this action should have made.

  3. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  4. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  5. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

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