ILNews

Justices reverse, reinstate wrongful death claim against nursing home

Back to TopCommentsE-mailPrintBookmark and Share

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.”

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  2. My situation was hopeless me and my husband was on the verge of divorce. I was in a awful state and felt that I was not able to cope with life any longer. I found out about this great spell caster drlawrencespelltemple@hotmail.com and tried him. Well, he did return and now we are doing well again, more than ever before. Thank you so much Drlawrencespelltemple@hotmail.comi will forever be grateful to you Drlawrencespelltemple@hotmail.com

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

ADVERTISEMENT