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COA splits in application of statute in med-mal suit

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The issue of whether the Journey's Account Statute applied to a woman's medical malpractice claim filed after the statute of limitations expired caused a split of an Indiana Court of Appeals panel.

In Suzanne Eads and James Atterholt, Commissioner of the Indiana Department of Insurance v. Community Hospital, No. 45A03-0807-CV-350, Chief Judge John Baker and Judge Edward Najam affirmed summary judgment in favor of the hospital in Suzanne Eads' medical malpractice claim that was a result of a fall in the hospital while using crutches. Eads was in the hospital for an ankle injury and asked for a wheelchair to exit the hospital; personnel refused and gave her crutches. She fell in a foyer area and injured her back and left hand.

She originally filed a negligence complaint against the hospital nearly two years after the fall. In 2007, the hospital argued the suit should be dismissed because it was a medical malpractice claim that had to be filed before the Indiana Department of Insurance. Eads then filed the proposed medical malpractice claim with the IDOI, relying on the same facts as the negligence case. The trial court granted summary judgment with prejudice because the suit was filed outside the two-year statute of limitations.

Eads' claim that her medical malpractice suit can survive under the Journey's Account Statute failed because she didn't establish her malpractice claim is a continuation of the negligence claim, wrote Chief Judge Baker. The majority relied on McGill v. Ling, 801 N.E.2d 678, 682 (Ind. Ct. App. 2004), to support its affirmation of summary judgment. Just as in McGill, Eads didn't file an initial medical malpractice complaint in a timely manner but in the incorrect forum, and so the statute doesn't apply in the instant case.

"There is a basic distinction between a common law claim of negligence and the statutory medical malpractice regime. Thus, whatever the similarities may be, there is a fundamental difference that prevents the application of the Journey's Account Statute," wrote the chief judge. "To hold otherwise would permit plaintiffs an untimely second bite at the apple, and we do not believe that to be the intent of the legislature in crafting the statute."

But Judge James Kirsch believed the majority's ruling narrowly construes the statute to defeat Eads' claim without the opportunity to be heard on the merits.

"Where a party diligently and timely pursues in good faith a claim of general negligence, and such claim later fails for lack of subject matter jurisdiction upon a finding that the action was, in fact, one of medical malpractice, the Journey Account Statute should permit the filing of the medical malpractice claim. That is the purpose of the statute," he wrote.

Judge Kirsch would reverse the grant of summary judgment and remand with instructions the claim be returned to IDOI for further proceedings by the medical review panel.

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  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

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