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'Continuing wrong' statute makes malpractice claim timely

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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.

 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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