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Justices analyze occurrence-based limitations

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Two Indiana Supreme Court justices dissented from the majority today in two medical malpractice suits because they believed the majority's reasoning behind the decisions that both plaintiffs' claims are time-barred would foster suspicion and doubt between health-care providers and their patients.

Justices Brent Dickson and Robert Rucker dissented from the majority's decisions in Lloyd Overton v. Marshall Grillo, D.O., et al., No. 64S04-0811-CV-595, and Victor Herron v. Anthony A. Anigbo, M.D., No. 45S03-0811-CV-594. In the opinions, the majority found both Lloyd and Christine Overtons' medical negligence claim for allegedly misreading a mammogram, and Victor Herron's medical malpractice claim for a surgery performed after a fall to be time-barred by the two-year statue of limitations.

In Herron, the Supreme Court analyzed the occurrence-based limitations period for medical malpractice claims, trigger dates, and reasonable diligence by a patient. The majority ruled in both Herron and Overton that the trigger dates in which the parties learned about the possible malpractice or facts that with reasonable diligence should lead to the discovery of malpractice occurred within the two-year statute of limitations. A patient's window in bringing an action is triggered if the patient should know of the possible malpractice even if there is not reason to suspect malpractice. Overton and Herron had time to file a claim because nothing prevented them from filing within the remaining time period. In Overton, Christine Overton knew of her condition when she was diagnosed with cancer a year after her first mammogram and that she had not been previously diagnosed after that first mammogram.

"That is enough to put the plaintiff on inquiry notice of the possibility of malpractice and ... the remaining several months was more than adequate to explore the issue," wrote Justice Theodore Boehm for the majority in Overton. The justices used similar reasoning to reach the same conclusion in Herron.

But Justices Dickson and Rucker disagreed, with Justice Dickson writing a similar dissent in both opinions. Citing Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005), the justice feared the majority's ruling in Herron would create an "unprecedented new and rigorous barrier preventing injured patients a reasonable opportunity to access the courts" for medical malpractice claims. He also worried the majority's rationale would foster a climate of suspicion and doubt between a patient and his or her health-care provider.

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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

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  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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