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Justices reverse, reinstate wrongful death claim against nursing home

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The estate of a woman who died in a nursing home after an attack by another resident may pursue a wrongful death claim, the Indiana Supreme Court ruled Tuesday. The family was initially told the woman suffered a fall but learned of the attack years later.
Justices reversed a trial court grant of summary judgment for the nursing home in Virginia E. Alldredge and Julia A. Luker, as Co-Personal Representatives of the Estate of Venita Hargis v. The Good Samaritan Home, Inc., 82S01-1305-CT-363. Vernita Hargis lived at Good Samaritan Home in Evansville in November 2006 when a daughter received a call from a nurse saying that Hargis was ill after suffering a fall. Hargis was hospitalized later that day and died a few days later from the head injury she sustained.

A nurse told one of Hargis’ daughters almost three years later that Hargis had been attacked by another resident. In December 2010, the family sued, and the nursing home was granted summary judgment in Vanderburgh Superior Court on its argument that the complaint was time-barred, and that even if fraudulent concealment occurred, that could not extend the statutory two-year filing period.

The Court of Appeals reversed and remanded, giving plaintiffs an opportunity to prove common-law fraud, but holding that the Fraudulent Concealment statute could not apply because it was enacted after the Wrongful Death Act.

Though an issue of first impression, Justice Mark Massa wrote for the court, “Based upon our review of the historical and precedential records, we conclude that if a plaintiff makes the necessary factual showing, the Fraudulent Concealment Statute may apply to toll the Wrongful Death Act’s two-year filing period. In so holding, we break very little new ground."  

“Public policy considerations further bolster our conclusion. Were we to hold otherwise, we would be incentivizing fraud and thus thwarting the obvious purpose of the Fraudulent Concealment Statute,” Massa wrote. “And our decision today is consistent with that of courts in other jurisdictions, which have routinely found fraud may toll a statutory filing period even when it is a condition precedent to the existence of the claim rather than a statute of limitation.”

The opinion traces statutes, common law and caselaw dating back more than 200 years to find numerous examples tolling in similar Indiana cases. The opinion opens with the final opinion written by Indiana’s fifth justice, Stephen C. Stevens – Raymond v. Simonson, an 1835 ruling –  in which he laments “the labyrinth of difficulties, discriminations, technicalities and shades that have gathered around the statute of limitations.”

In a footnote, Massa notes a biography of Stevens says after he resigned from the bench he returned to private practice. “(T)hirty-three years later, after losing his fortune in a bad railroad investment, he died destitute in the Indiana Hospital for the Insane.”

 

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  1. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

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