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. Don't we have bigger issues to concern ourselves with?

  2. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  3. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  4. Different rules for different folks....

  5. I would strongly suggest anyone seeking mediation check the experience of the mediator. There are retired judges who decide to become mediators. Their training and experience is in making rulings which is not the point of mediation.

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