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No summary judgment on issue of whether complaint was timely filed

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The Indiana Court of Appeals reversed summary judgment in favor of a doctor in a medical malpractice action, finding there are questions around whether the plaintiff timely filed the proposed complaint.

Tomika Johnson filed the malpractice complaint against Drs. David Sullivan and Jose Arias and Deaconess Hospital following the death of Barton Johnson. Barton was transferred to the hospital Dec. 22, 2006, and had a CT scan. Sullivan interpreted the CT scan and signed a radiological report. The next day, Barton died. On Dec. 26, Sullivan issued another report on the CT scan, with a second page subtitled “appended report,” noting the case was reviewed in retrospect.

The proposed complaint was postmarked Dec. 23, 2008. In 2010, the trial court granted summary judgment to Sullivan, who alleged Johnson failed to file the proposed complaint within the two-year statute of limitations period.

The Court of Appeals affirmed summary judgment for Sullivan with regards to Johnson’s arguments that the doctrine of “continuing wrong” precluded summary judgment, Sullivan had been involved in the case after Dec. 22, 2006, and the doctor fraudulently concealed an otherwise valid claim from Johnson. But the judges did find an issue of material fact regarding whether the proposed complaint was actually filed Dec. 22, 2008, despite the Dec. 23 postmark.

An affidavit from Johnson’s attorney’s legal assistant claims that the assistant took the proposed complaint to the post office Dec. 22.

“Under the Medical Malpractice Act, the date of delivery or mailing, not the date of postmarking, is the date a proposed complaint is considered filed,” wrote Judge Cale Bradford in Tomika Johnson, et al. v. David Sullivan, M.D., et al., No. 82A05-1102-MI-108. “While it may be that a postmark indicates the date on which an item was mailed in the vast majority of cases, there is no indication in the record that this is always so. We hold today that evidence of mailing on a particular date, even if it contradicts a postmark, is competent to prove filing on that date for purposes of the Medical Malpractice Act.”

Judge John Baker concurred in a separate opinion, encouraging that the issue of whether the complaint was timely mailed might be tried first. Only if the answer is yes should the parties then “undertake the expense of conducting discovery and presenting their proof of the remaining issues,” which would potentially save “both public and private resources,” he wrote.
 

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  1. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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