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COA: Malpractice claim barred by statute of limitations

February 6, 2017

The Indiana Court of Appeals has rejected a woman’s malpractice claim after holding that the claim was barred by a two-year statute of limitations.

After performing a colon exam and biopsy on 23-year-old Jessica Szamocki in November 2012, a unnamed doctor identified in the opinion as A.D. instructed Szamocki to take one tablet of the medication Lialda once a day. However, A.D.  failed to warn his patient of the risks of taking that medication, including the fact that the drug’s manufacturer recommended that a patient’s renal function be evaluated prior to and while taking the medication to avoid renal impairment.

A few months after beginning the prescription, Szamocki developed a rash on her arms and began to notice symptoms of arthritis. After a nurse practitioner noted concerns about her “drastically reduced” renal function, Dr. Richard Hellman, a nephrologist, informed Szamocki that she was suffering from acute renal failure possibly caused by Lialda. Other specialists also theorized that the drug may have been causing her renal failure, so Szamocki decided on her own to quit taking the drug in May 2013.

Szamocki began seeking clear evidence that the drug was the cause of her renal failure because her family was considering legal action. In February 2015, Dr. Evamaria Anvari, a nephrologist at the Cleveland Clinic, gave Szamocki a diagnosis that she believed confirmed that “more likely than not,” there was a link between Lialda and her renal failure.

As a result, Szamocki filed her medical malpractice complaint against A.D. in February 2015, alleging that he negligently prescribed the drug and failed to monitor her renal function while she was taking the drug. A.D. moved for summary judgment, holding that the statute of limitations prevented Szamocki from bringing the complaint.

The Marion Superior Court granted summary judgment to A.D. and the doctor’s motion to strike, prompting Szamocki to appeal. Specifically, Szamocki argued that the statute was tolled until May 2, 2013 under the doctrine of continuing wrong and that her complaint was filed within a reasonable time after she exercised “reasonable diligence” to discover the malpractice.

But the Indiana Court of Appeals rejected both of those arguments Monday, with Judge Terry Crone writing for the panel that because Szamocki’s last encounter with A.D. was in December 2012, that was “the last opportunity he would have had to monitor (or fail to monitor) Szamocki’s renal function while she was taking (Lialda).” Thus, any alleged omission of nonfeasance on A.D.’s part could not have extended past December 2012, Crone wrote.

Further, Crone noted that other doctors informed Szamocki in 2013 and 2014 that the prescription drug was the possible cause of her renal failure.

“On those dates, Szamocki possessed enough information that, in the exercise of reasonable diligence, should have led to the discovery of the alleged malpractice,” the judge wrote. “The record simply does not support Szamocki’s contrary assertions.”

The case is Jessica Szamocki v. Anonymous Doctor and Anonymous Group, and Stephen Robertson, Commissioner, Indiana Department of Insurance,
49A02-1603-PL-520

 

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