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Doctor’s statute of limitations defense in med mal claim rejected by justices

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A doctor who chose to perform just one biopsy instead of two on a woman who later was diagnosed with cervical cancer is not entitled to summary judgment on his defense asserting the medical malpractice statute of limitations, the Indiana Supreme Court ruled Wednesday.

A routine pap smear performed by Lisa David’s doctor, Dr. William Kleckner, detected abnormalities. The pathologist recommended an endocervical and endometrial biopsy. Kleckner only performed the endometrial biopsy Feb. 27, 2009. Those results “came back clear,” but in September 2009, Lisa David visited another doctor due to pain and discomfort. That doctor found a mass on her cervix. She was diagnosed with cancer, began treatment, but died March 25, 2011.

Sometime in February 2011, David’s husband became suspicious as to why Kleckner did not find any evidence of cancer or a tumor and obtained her medical records. That’s when he discovered Kleckner did not perform the endocervical biopsy. The wrongful death medical malpractice action was brought by Larry David July 1, 2011. The trial court granted summary judgment to Kleckner, who argued the complaint was barred by the statute of limitations.

The justices used their decision in Larry Robert David, II, as Special Administrator of the Estate of Lisa Marie David, Deceased v. William Kleckner, M.D., 49S02-1405-MI-355, to clarify when a party may bring a medical malpractice action by examining caselaw on the matter.

“We conclude that neither Brinkman, Overton, nor Herron should be read to undermine the discovery opportunity element expressly recognized in Manley, Van Dusen and Booth. Thus, in determining whether a medical malpractice claim has been commenced within the medical malpractice statute of limitations, the discovery or trigger date is the point when a claimant either knows of the malpractice and resulting injury, or learns of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury,” Chief Justice Brent Dickson wrote.

Kleckner established that the action was filed by David more than two years after the date of the alleged malpractice, but David is able to show there is a disputed fact as to when his wife could have discovered whether Kleckner’s failure to perform the endocervical biopsy caused or inhibited timely treatment.

“We find that it was not necessarily an unreasonable delay for this action to be commenced on July 1, 2011, and that the plaintiff may be found to have filed within a reasonable time if the trigger date occurred within the statutory window,” Dickson wrote.
 

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  2. 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.

  3. 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.

  4. 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.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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