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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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  1. My daughters' kids was removed from the home in March 2015, she has been in total compliance with the requirements of cps, she is going to court on the 4th of August. Cps had called the first team meeting last Monday to inform her that she was not in compliance, by not attending home based therapy, which is done normally with the children in the home, and now they are recommending her to have a psych evaluation, and they are also recommending that the children not be returned to the home. This is all bull hockey. In this so called team meeting which I did attend for the best interest of my child and grandbabies, I learned that no matter how much she does that cps is not trying to return the children and the concerns my daughter has is not important to cps, they only told her that she is to do as they say and not to resist or her rights will be terminated. I cant not believe the way Cps treats people knowing if they threaten you with loosing your kids you will do anything to get them back. My daughter is drug free she has never put her hands on any of her children she does not scream at her babies at all, but she is only allowed to see her kids 6 hours a week and someone has to supervise. Lets all tske a stand against the child protection services. THEY CAN NO LONGER TAKE CHILDREN FROM THERE PARENTS.

  2. Planned Parenthood has the government so trained . . .

  3. In a related story, an undercover video team released this footage of the government's search of the Planned Parenthood facilities. https://www.youtube.com/watch?v=ZXVN7QJ8m88

  4. Here is an excellent movie for those wanting some historical context, as well as encouragement to stand against dominant political forces and knaves who carry the staves of governance to enforce said dominance: http://www.copperheadthemovie.com/

  5. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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