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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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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