ILNews

'Continuing wrong' statute makes malpractice claim timely

Back to TopCommentsE-mailPrintBookmark and Share

A doctor who was the subject of a malpractice claim due to his patient losing consciousness and causing a crash while driving is not entitled to summary judgment, the Indiana Court of Appeals held.

In Mary Alice Manley and Gary Manley v. Ryan J. Sherer, M.D., and Sherer Family Medicine, No. 59A01-1104-PL-190, Gary and Mary Alice Manley sued Dr. Ryan Sherer following a crash on Nov. 27, 2006, that left Mary Alice Manley with permanent debilitating injuries. She was hit head-on by Sherer’s patient, Kimberly Zehr, who lost consciousness while driving due to a medical condition and the effects of medication prescribed by Sherer.

On Nov. 25, 2008, the Manleys filed a proposed complaint against Sherer with the Indiana Department of Insurance. Sherer filed with the trial court a motion for preliminary determination of law and for summary judgment. The trial court subsequently granted summary judgment to Sherer on all of the Manleys’ claims and directed the entry of judgment in favor of Sherer.

Sherer said the Manleys’ complaint was not timely; the Indiana Medical Malpractice Act sets forth a two-year statute of limitations for claims by victims of alleged medical malpractice. That two-year time frame would have begun on Nov. 21, 2006, when Sherer last treated Zehr. But the Manleys claim that their complaint is saved by the doctrine of continuing wrong.

The COA held that a dispute of fact exists as to whether Sherer’s failure to warn Zehr not to drive while she was under his care constitutes a continuing wrong. Under that doctrine, the statute of limitations would be tolled until at least Nov. 27, 2008, which would make the Manleys’ complaint timely.   

The appellate court also held that because Sherer did not warn Zehr to stop driving altogether, there is a dispute of fact on the element of breach of duty, and Sherer is not entitled to summary judgment as a matter of law on that element. The COA remanded for further proceedings consistent with its opinion.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Bill Satterlee is, indeed, a true jazz aficionado. Part of my legal career was spent as an associate attorney with Hoeppner, Wagner & Evans in Valparaiso. Bill was instrumental (no pun intended) in introducing me to jazz music, thereby fostering my love for this genre. We would, occasionally, travel to Chicago on weekends and sit in on some outstanding jazz sessions at Andy's on Hubbard Street. Had it not been for Bill's love of jazz music, I never would have had the good fortune of hearing it played live at Andy's. And, most likely, I might never have begun listening to it as much as I do. Thanks, Bill.

  2. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  3. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  4. Indiana up holds this behavior. the state police know they got it made.

  5. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

ADVERTISEMENT