ILNews

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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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