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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.”


 

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  • MALPRACTICE
    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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