COA: Nearly identical medical malpractice, wrongful death cases filed too late

The Indiana Court of Appeals has granted summary judgment to physicians and their hospitals in three nearly identical medical malpractice and wrongful death cases filed more than seven years after the deaths of three patients after finding the actions could have been filed years prior.

The three patients, Louis Biedron, Dorothy Sullivan and Patricia Poteet, each received treatment from two anonymous physicians and their hospital, who implanted cardiac pacemakers in all three patients. Biedron died almost 1 ½ years after his surgery, Sullivan died during her surgery and Poteet died almost a year and three months after her surgery.

More than seven years after their deaths, personal representatives from each estate filed malpractice complaints and wrongful death suits against the physicians and hospital. Defendants in all three cases moved for summary judgment on the basis that the complaints were filed outside the two-year statutory limitation period.  In response, the estates contended the period should be tolled by the doctrine of fraudulent concealment and submitted a supporting affidavit from Dr. Nadim Nasir, Jr., who testified the anonymous physicians fell below the applicable standard of care.

The Lake Superior Court granted summary judgment to the Biedron defendants, but denied it to the Sullivan and Poteet defendants.  The court also denied the Sullivan and Orr defendants’ motion to strike Nasir’s affidavit and granted a motion filed by Poteet’s estate to strike the Poteet defendants’ reply briefs.

In a Wednesday order partially affirming and denying the trial court’s ruling, the appellate court found that each estate failed to establish an issue of material fact as to their fraudulent concealment theories, as well as establish the defendants’ concealment of material information prevented the plaintiffs from investigating the condition of the deceased more closely.

The court also noted the Biedron and Sullivan’s estates could have requested medical records soon after their deaths, which would have revealed the same information that they rely on to assert that the physicians committed malpractice. Thus, summary judgment was appropriate for all defendants.

In the case of Bierdon, the appellate court found the estate’s argument was critically flawed because Nasir had no personal knowledge of what the anonymous physician actually told Biedron about the pacemaker. It concluded, then, that the trial court should have disregarded Nasir’s statements.

Likewise, in the case of Sullivan and Poteet, the defendants moved to strike Nasir’s affidavit based on his lack of personal knowledge and speculation. The COA reversed the denial of those motions, again pointing to Nasir’s inadmissible statements.

Finally, the appellate court reversed the striking of the Poteet defendants’ reply briefs, finding the arguments made in those briefs were proper responses to the fraudulent concealment argument.

The case is Theresa Biedron, et al. v. Anonymous Physician 1, et al., 45A03-1708-CT-2012.

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