Portion of malpractice statute of limitations ruled unconstitutional in some cases

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A woman’s malpractice lawsuit against the estate of a Marshall County doctor who died more than two decades ago will go forward, the Indiana Court of Appeals ruled. The court found the two-year statute of limitations on medical malpractice claims unconstitutional in certain cases.

Stacy Kaufman filed a proposed medical malpractice claim against the estate of anonymous physician Dr. K in 2009, 35 years after Dr. K delivered her. The doctor ordered a blood test for phenylketonuria (PKU), and although the blood test revealed that Stacy had PKU, Dr. K. never communicated the result to Kaufman’s parents, according to court records.

Indiana Code 34-18-7-1(b) “violates Article 1, Section 23 and Article 1, Section 12 of the Indiana Constitution in cases where a plaintiff, within the two-year period, does not know, or in the exercise of reasonable diligence could not have discovered, that he or she had sustained an injury as a result of malpractice,” Judge Michael Barnes wrote in a unanimous opinion.

Kaufman didn’t discover that she he PKU – a condition in which a person cannot break down a certain amino acid which can lead to a toxic buildup in the body. It can cause severe malformation and mental retardation in children.

Kaufman gave birth to C.K. in November 2005. C.K. was born with microcephaly – a small head –  and dysmorphic facial features. It wasn’t until 2007 that a neurologist diagnosed C.K. as having PKU. Kaufman’s mother, Mary, in September 2007 obtained Stacy’s birth records, and discovered the test confirming PKU that had not been communicated.

The Court of Appeals affirmed the ruling of Marshal Circuit Judge Curtis Palmer, who declined to grant the estate’s request for summary judgment on the statute of limitations. Palmer found an issue of fact as to when the diagnosis was discovered and properly denied summary judgment for the estate.

“We are, of course, fully cognizant that we are permitting a nearly four-decade old claim of malpractice to proceed at this time. Nonetheless, it is not unheard of in our jurisprudence to permit lawsuits based upon decades-old acts of negligence to proceed, under very limited circumstances. See, e.g., Jurich v. Garlock, Inc., 785 N.E.2d 1093, 1095 (Ind. 2003),” Barnes wrote.

Meanwhile, the court declined to reverse Palmer’s ruling that Dr. K did not owe a duty to Kaufman’s child, C.K.

“Recognizing duty in a case such as this could extend a physician’s potential liability for several decades after an alleged negligent act. This would contravene the Act’s purpose of placing reasonable limits upon a physician’s exposure to malpractice claims. Additionally, there is no doubt a strong public policy in favor of ensuring that infants are properly tested for PKU and that any such test results be expeditiously conveyed to the infant’s parents. However, the original patient him- or herself is directly harmed and sustains injury if a positive PKU test result is not conveyed and the patient may state a claim for malpractice against the doctor,” Barnes wrote.

“We acknowledge some tension between our holding on this issue and on the statute of limitations issue, particularly with respect to our concerns regarding the time period between the alleged original negligence and the filing of this lawsuit. Nevertheless, the two issues are governed by different legal standards and, as such, has led to two different results.”



    My brother and his friend received bad blood transfusions at different times from the same major hospital in Ohio about 30 years ago, and just recently discovered the transfusion was a result of their Cirrhosis of the Liver. 1. Can Ohio’s Statue of Limitation be challenged to be held unconstitutional, as in the opinion in Houser v. Kaufman and Hardy v. VerMeulen? 2. Can a malpractice case be brought under Medical negligence liability under the consumer protection act citing, it is unconstitutional to time bar this matter.

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  1. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  2. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  3. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  4. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  5. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.