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Journey’s Account Statute applies to proposed medical malpractice complaint

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The Indiana Court of Appeals Wednesday affirmed that the Journey’s Account Statute applies to revive a proposed medical malpractice complaint filed on behalf of a woman’s granddaughter as her guardian.

Carrie Etta McGoffney resided at Royal Oaks Health Care and Rehabilitation Center for 10 months. After her stay, McGoffney’s daughter, Kelly, filed a proposed medical malpractice complaint on behalf of her mother, even though Kelly’s sister, Ivy, was McGoffney’s sole guardian and attorney-in-fact.

The complaint was dismissed in late December 2011, but when Keeli Mayes, Carrie McGoffney’s granddaughter, was appointed as guardian, she filed what she called an amended proposed medical malpractice complaint. Royal Oaks sought summary judgment, saying the filing was untimely. The trial denied summary judgment. The Court of Appeals affirmed in Kindred Nursing Centers, d/b/a Royal Oaks Health Care and Rehabilitation Center v. The Estate of Carrie Etta McGoffney, 84A04-1402-MI-56.

“We conclude that the circumstances of this case warrant application of the JAS and support the trial court’s judgment. We see no indication in the record that Kelly was anything but diligent in her prosecution of the proposed complaint or acted in bad faith. After timely filing the first proposed medical malpractice complaint on Carrie’s behalf, Kelly secured a nunc pro tunc order from the Probate Court providing that she had the legal authority to do just that,” Judge Cale Bradford wrote. “In essence, the Probate Court created a limited guardianship in Kelly for the purpose of pursuing a medical malpractice complaint, one that was in effect until the appointment of Keeli.

“Additionally, the complaint filed by Kelly was dismissed because the superior court concluded that she did not have standing to file suit on behalf of Carrie, which, even if the correct decision, had nothing to do with the merits of the complaint. In summary, the suit was timely filed, diligently prosecuted in good faith, and it failed for a reason other than Kelly’s negligence. The complaint filed by Keeli, essentially identical to the one previously filed by Kelly, therefore survives pursuant to the JAS.”

 

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  1. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

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