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Journey’s Account Statute applies to proposed medical malpractice complaint

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The Indiana Court of Appeals Wednesday affirmed that the Journey’s Account Statute applies to revive a proposed medical malpractice complaint filed on behalf of a woman’s granddaughter as her guardian.

Carrie Etta McGoffney resided at Royal Oaks Health Care and Rehabilitation Center for 10 months. After her stay, McGoffney’s daughter, Kelly, filed a proposed medical malpractice complaint on behalf of her mother, even though Kelly’s sister, Ivy, was McGoffney’s sole guardian and attorney-in-fact.

The complaint was dismissed in late December 2011, but when Keeli Mayes, Carrie McGoffney’s granddaughter, was appointed as guardian, she filed what she called an amended proposed medical malpractice complaint. Royal Oaks sought summary judgment, saying the filing was untimely. The trial denied summary judgment. The Court of Appeals affirmed in Kindred Nursing Centers, d/b/a Royal Oaks Health Care and Rehabilitation Center v. The Estate of Carrie Etta McGoffney, 84A04-1402-MI-56.

“We conclude that the circumstances of this case warrant application of the JAS and support the trial court’s judgment. We see no indication in the record that Kelly was anything but diligent in her prosecution of the proposed complaint or acted in bad faith. After timely filing the first proposed medical malpractice complaint on Carrie’s behalf, Kelly secured a nunc pro tunc order from the Probate Court providing that she had the legal authority to do just that,” Judge Cale Bradford wrote. “In essence, the Probate Court created a limited guardianship in Kelly for the purpose of pursuing a medical malpractice complaint, one that was in effect until the appointment of Keeli.

“Additionally, the complaint filed by Kelly was dismissed because the superior court concluded that she did not have standing to file suit on behalf of Carrie, which, even if the correct decision, had nothing to do with the merits of the complaint. In summary, the suit was timely filed, diligently prosecuted in good faith, and it failed for a reason other than Kelly’s negligence. The complaint filed by Keeli, essentially identical to the one previously filed by Kelly, therefore survives pursuant to the JAS.”

 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

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  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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