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Statute of limitations bars medical negligence case

January 19, 2017

After a dermatology appointment left a Marion County woman with facial discoloration that never went away as her doctor said it would, the woman sought damages in a negligence complaint. However, because she failed to prove that she “later learned” that her injury was worse than she thought, the Indiana Court of Appeals held that the woman’s claim cannot proceed in court because it was not timely filed.

After a visit to Dr. Sonya Campbell Johnson at Dermatology Associates P.C. for a laser hair removal procedure on her face in September 2012, a portion of Elizabeth White’s face became discolored. The discoloration eventually improved but did not completely go away, so White filed a complaint for medical negligence and sought no more than $15,000 in damages.

In October 2014, Johnson and Dermatology Associates moved for summary judgment while White moved to dismiss her complaint without prejudice because she had “learned during the pendency of her action that her bodily injury is more serious than previously believed…and therefore believed that ($15,000) will be insufficient compensation for her bodily injury.” The trial court granted White’s motion and she subsequently filed a complaint with the Indiana Department of Insurance in November 2014 that was identical to her previous complaint minus the limited damages declaration.

The providers then filed for preliminary determination and again moved for summary judgment in Marion Superior Court 10, alleging that White’s complaint before the Department of Insurance was untimely. The trial court denied that motion, so Dermatology Associates appealed.

A divided panel of the Indiana Court of Appeals agreed with the providers Thursday, writing normally a patient must file a medical negligence claim with a medical review panel through the Indiana Department of Insurance within two years of the incident.

However, Judge Margaret Robb, writing for the majority, noted that an exception to that rule can be made when a case is begun in court for damages not exceeding $15,000, then dismissed without prejudice and filed with the review panel without a damages limit if the bodily injury is worse than previously thought.

If that situation occurs and the moving party then begins a second action following the medical review panel proceedings, an additional 180 days may be added to the two-year statute of limitations. Under those circumstances, White’s complaint with the Department of Insurance, which fell outside of the two-year window, could continue through the 180-day extension.

White argued that because Indiana Code allows her to dismiss her complaint and file it with the Department of Insurance without imposing a specific cut-off period, she does not need the 180-day extension. But the majority of the panel found that if a complaint is voluntarily dismissed, it is treated as if it never existed and, thus, cannot toll the two-year statute of limitations.

Further, Robb wrote White failed to prove that she “later learned” that her bodily injury was worse than she thought because “she has not alleged she learned anything new or different about her injury after filing her original complaint.” Thus, she cannot trigger the 180-day extension using that argument.

But Judge Paul Mathias, writing in a separate dissenting opinion, argued that White did establish that she later learned that her injury was more serious through her own personal experience and, thus, was entitled to the 180-day extension.

“Under the facts and circumstances before us, I think a woman’s ultimate decision that a lifetime of facial disfiguration was worth more than $15,000 is something she could, and here did, ‘learn’ from looking into the mirror every day, trying without success to use make-up to make the scarring less noticeable.”

The case is Dermatology Associates, P.C. and Sonya Campbell Johnson, M.D. v. Elizabeth C. White, 49A02-1512-PL-2189.

 

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