ILNews

Malpractice complaint hobbled by ongoing foot pain

Back to TopCommentsE-mailPrintBookmark and Share

A woman who suffered with a troubled toe for four years got her medical malpractice claim booted by the Indiana Court of Appeals for waiting too long to file the complaint.

The Indiana Court of Appeals reversed the denial of the doctor’s summary judgment motion in Anonymous Physician v. Diana Wininger and Stephen Robertson, Commissioner, Indiana Department of Insurance and Douglas J. Hill, Panel Chair, 59A04-1303-MI-103. It found the patient’s medical malpractice complaint was barred by the two-year statute of limitations.  

To relieve Diana Wininger’s pain in her right foot, the anonymous physician shortened her second toe and corrected a deformity in March 2007. However, by July, her toe was standing up at a 45 degree angle and the foot pain continued.

When Wininger sought a second opinion in April 2009, she was told her toe was too short and she should have another operation.

Wininger filed a malpractice claim in March 2011. She argues she was within the statute of limitations because she did not know something was wrong until she consulted the second doctor.

The physician contended since Wininger knew there was a problem in October 2007, she should have filed the complaint within two years of the surgery date.   

Citing Johnson v. Gupta 762 N.E.2d 1280, 1283 (Ind. Ct. App. 2002), the Court of Appeals noted a plaintiff does not need to be told malpractice has occurred to trigger the statute of limitations. Wininger continued to have pain after her surgery and knew by October 2007 she should seek another opinion.

Therefore, the COA found the statute of limitations was not tolled and Wininger’s complaint was not timely filed.
 

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
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

ADVERTISEMENT