Doctrine of continuing wrong not applicable to man’s malpractice claim

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The Indiana Court of Appeals reversed the denial of summary judgment in favor of a physician and a medical group on a patient’s claim of malpractice after the patient learned his allergic reactions were caused by the disinfectant used by the doctor. The judges held the doctrine of continuing wrong does not apply in this case.

In Anonymous Physician and Anonymous Medical Group v. Richard Loucks Rogers, 02A03-1401-CT-1, Richard Loucks Rogers sued the urologist who treated him for bladder cancer and his medical group, which are not named in the opinion. The physician performed several cystoscopies on Rogers and disinfected the equipment with Cidex OPA. There are warnings against using this disinfectant on patients with bladder cancer. The doctor didn’t tell Rogers he was using the product, and Rogers initially didn’t suffer any ill effects from it.

But beginning in March 2008, Rogers began experiencing allergic reactions to the drug that progressively became more severe. He and the urologist did not learn that it was the Cidex OPA that was causing the reaction until March 6, 2009, two months after the doctor performed the last cystoscopy.

Rogers filed a pro se complaint March 4, 2011, alleging negligent care from August 2006 until July 2009, the date the urologist stopped treating Rogers. The trial court first granted the medical professional’s motion for summary judgment, then granted Rogers’ motion to correct error. The court found there was a genuine issue of material fact as to how the statute of limitations applied.

The appeals judges found Rogers’ case to be similar to that of Gradus-Pizlo v. Acton, 964 N.E.2d 865, 871 (Ind. Ct. App. 2012).

“There, this court rejected the plaintiff’s argument that the doctor’s entire course of care created a continuing wrong and held that the two year statute of limitations period began to run the day the medicine was prescribed, not the day the patient stopped taking the medicine and not the day the patient died. We did this even though the medicine led to the patient’s death. Rogers makes the same argument but does so without distinguishing the present case from Gradus-Pizlo. Rogers alleges that Physician was negligent from his first treatment of Rogers in August 2006 through at least March 6, 2009, when he did not investigate the cause of the allergic reactions, read the warning labels or medical literature, or recognize on his own that Cidex OPA was causing Rogers’s increasingly-serious allergic reactions. Rogers has failed to show an issue of material fact regarding the doctrine of continuing wrong,” Judge Margret Robb wrote.

The judges also found that Rogers did not prove that it was not reasonably possible for him to file his claim within the two-year statutory limitations period, so his claim cannot be saved.

Judge James Kirsch dissented, believing the course of conduct did not stop on Jan. 7, 2009, the last time the doctor used Cidex OPA to disinfect the urology equipment, but instead continued until at least March 6, 2009, when both Rogers and the doctor learned Rogers was allergic to the disinfectant.

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