In a wrongful-death claim filed nearly five years after a nursing home death, the Indiana Supreme Court is considering whether in instances of fraudulent concealment the two-year limitation clock starts over or if giving plaintiffs “reasonable time” to file is an acceptable standard.
The five justices pressed opposing counsel on the concept of reasonable time and fairness during oral arguments Dec. 5 in Virginia E. Alldredge and Julie A. Luker, as co-personal representatives for the Estate of Venita Hargis v. The Good Samaritan Home, Inc., 82S01-1305-CT-363.
At issue is whether the doctrine of fraudulent concealment applies to nonclaim statutes. If so, does the plaintiff have a reasonable time to bring a claim or does fraudulent concealment toll the statute of limitations for two years?
Venita Hargis’ family was told three years after her death that the injury that led to her death was not because she fell, as The Good Samaritan Home had claimed, but was actually caused by another resident attacking her.
The plaintiffs filed a wrongful-death complaint against Good Samaritan, but the Vanderburgh Superior Court dismissed the claim as untimely. On appeal, the Indiana Court of Appeals reversed, ruling the estate has a full two-year period to file after the discovery of the wrongful death when the cause of the death has been fraudulently concealed.
Before the Supreme Court, the estate’s attorney, Robert King, argued the court should adopt a “bright line rule” by setting a specific deadline for wrongful-death claims to be filed in instances of fraudulent concealment.
Attorney Danny Glass, representing Good Samaritan, countered that the plaintiffs were making a bald-faced assertion that they were entitled to two years. He told the court the standard of reasonable time should remain in place.
After Hargis died Nov. 26, 2006, the nursing home told the family she had fallen and hit her head. However, on Nov. 24, 2009, family members were told by a former employee of Good Samaritan that their mother’s fatal head injury was the result of her being attacked by another resident.
The family subsequently filed a complaint Oct. 27, 2011, asserting the nursing home had been negligent and had fraudulently concealed the true cause of Hargis’ death.
Justice Robert Rucker quizzed Glass on what should happen when fraudulent concealment is discovered after the wrongful death filing time period has expired. He repeatedly asked the question, interrupting the Evansville attorney and pushing him to provide an answer.
“What should happen?” Rucker asked. “You mentioned earlier that it’s not tolling, it’s equitable something or other, and I’m asking you how does that play out?
Glass responded that once the plaintiffs find out, they would have a reasonable time to bring their claim. That i equitable, he said, and will not provide more of a remedy than is needed.
To King, Rucker asked why giving a plaintiff two years to file was better than using the reasonable time standard.
King responded that not granting a specific deadline in cases of fraudulent concealment would reward the parties who hide their wrongful conduct.
Rucker interjected the court was not rewarding the defendants. The Supreme Court could grant the plaintiffs the right to pursue the case, but he wanted to know why two years was better.
Pointing to the medical malpractice case Van Dusen v. Stotts, 712 N.E.2d 491, 497 (Ind. 1999), King noted the opinion called for a set period of time to file a claim. Doing so avoids what Judge John Baker referred to in his opinion in Alldredge as the hairsplitting to determine what the deadline for filing would be.
“In essence, you’re starting from scratch just like you would be if it had never been concealed,” King said. “You get your full two years. And that’s what we’re saying about folks who have been lied to, why should they be punished with a shorter period of time?
Picking up on Rucker’s line of questioning, Justice Loretta Rush asked why a reasonable time would be shorter.
King responded that caselaw shows a reasonable time standard is “never good enough.”
After the oral arguments, King filed a notice of additional pertinent authorities and cited cases supporting his argument for two years rather than reasonable time. For example, Burks v. C.H. Rushmore, 534 N.E.2d 1101 (Ind. 1989), does not grant the full statutory period when fraudulent concealment is an issue.
In its opinion, the Court of Appeals relied upon Van Dusen. There, the Supreme Court granted another two years to file a claim in cases of medical malpractice where the long latency period of the medical condition prevented the patient from discovering the physician’s malpractice.
Accordingly, the Court of Appeals concluded when someone fraudulently conceals the existence of a wrongful death beyond the Wrongful Death Act’s two-year limitations period, the family can file a claim within the next two years.
Justice Steven David and Chief Justice Brent Dickson asked Glass how the shorter period that Glass was advocating for was fair when the plaintiffs would have had two years if not for the concealment.
Glass pointed to the Court of Appeals ruling in Tomika Johnson, et al. v. David Sullivan, M.D., et al., 82A05-1102-MI-108. In a footnote, the court noted no claimant in any Indiana case has ever been given a full two years to file a complaint following the discovery of concealment.
Justice Mark Massa then broached the issue of fairness, asking why wrongful death should be different from medical malpractice claims in terms of fraudulent concealment.
“I don’t think it is different,” Glass replied. “In medical malpractice cases where fraudulent concealment has been an issue, they haven’t gotten two years. In the cases where they got two years, fraudulent concealment wasn’t even an issue.”
Dickson asked King if he disagreed with Glass’ response to the question from Massa.
Again, King pointed to Van Dusen, which left for another day the question of how to handle reasonable time in medical malpractice cases within the doctrine of fraudulent concealment. Apparently, he told the court, that day might have arrived now.
King also responded to Glass’ reply to Justice Rucker’s question on what should happen once fraudulent concealment is discovered. The plaintiffs’ attorney described Glass’ solution as rushing to the courthouse without doing due diligence or collecting facts and evidence. Lawyers and litigants, he said, ought to have adequate time to research their claims, especially three years after the incident when witnesses have moved away.•