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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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  1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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