ILNews

Malpractice complaint hobbled by ongoing foot pain

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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.
 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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