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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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