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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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