ILNews

No summary judgment on issue of whether complaint was timely filed

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. IF the Right to Vote is indeed a Right, then it is a RIGHT. That is the same for ALL eligible and properly registered voters. And this is, being able to cast one's vote - until the minute before the polls close in one's assigned precinct. NOT days before by absentee ballot, and NOT 9 miles from one's house (where it might be a burden to get to in time). I personally wait until the last minute to get in line. Because you never know what happens. THAT is my right, and that is Mr. Valenti's. If it is truly so horrible to let him on school grounds (exactly how many children are harmed by those required to register, on school grounds, on election day - seriously!), then move the polling place to a different location. For ALL voters in that precinct. Problem solved.

  2. "associates are becoming more mercenary. The path to partnership has become longer and more difficult so they are chasing short-term gains like high compensation." GOOD FOR THEM! HELL THERE OUGHT TO BE A UNION!

  3. Let's be honest. A glut of lawyers out there, because law schools have overproduced them. Law schools dont care, and big law loves it. So the firms can afford to underpay them. Typical capitalist situation. Wages have grown slowly for entry level lawyers the past 25 years it seems. Just like the rest of our economy. Might as well become a welder. Oh and the big money is mostly reserved for those who can log huge hours and will cut corners to get things handled. More capitalist joy. So the answer coming from the experts is to "capitalize" more competition from nonlawyers, and robots. ie "expert systems." One even hears talk of "offshoring" some legal work. thus undercutting the workers even more. And they wonder why people have been pulling for Bernie and Trump. Hello fools, it's not just the "working class" it's the overly educated suffering too.

  4. And with a whimpering hissy fit the charade came to an end ... http://baltimore.cbslocal.com/2016/07/27/all-charges-dropped-against-all-remaining-officers-in-freddie-gray-case/ WHISTLEBLOWERS are needed more than ever in a time such as this ... when politics trump justice and emotions trump reason. Blue Lives Matter.

  5. "pedigree"? I never knew that in order to become a successful or, for that matter, a talented attorney, one needs to have come from good stock. What should raise eyebrows even more than the starting associates' pay at this firm (and ones like it) is the belief systems they subscribe to re who is and isn't "fit" to practice law with them. Incredible the arrogance that exists throughout the practice of law in this country, especially at firms like this one.

ADVERTISEMENT