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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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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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