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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. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. 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

  3. 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.

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  5. 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.

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