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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 appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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