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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. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

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