The Indiana Court of Appeals today reversed and remanded to Lake Circuit Court a medical malpractice case, holding that it is unconstitutional to apply the state statute’s “occurrence-based” nature to the man suing a surgeon.
In Victor Herron v. Anthony A. Anigbo, M.D. http://www.in.gov/judiciary/opinions/pdf/05230712jsk.pdf , No. 45A03-0608-CV-378, the three-judge panel ruled the trial court erred in concluding that Herron’s discovery date allowed for sufficient knowledge to discover the malpractice.
The suit stems from Herron’s fall outside his home and his admittance to a Merrillville hospital in March 2002. He underwent surgical procedures by Dr. Anigbo and was discharged three weeks later to another facility, though he continued on a ventilator for nine months. In June 2003, Herron went to another doctor to determine if he was fit to be released to a rehabilitation facility; the doctor determined he wasn’t. Another doctor advised Herron in November 2003 that Dr. Anigbo’s negligent follow-up care had caused the deterioration.
The trial court determined the discovery date was in June of 2003 rather than November.
In determining if Herron had sufficient opportunity to bring his claim before the March 2004 statute of limitations expiration, the court wrote, “We conclude that he did not. It was not until the two-year anniversary of the injury that (another doctor) reported Herron was recovering well and that no new problems had manifested.”