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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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