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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. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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