`

‘Reasonable diligence’ required estate to inquire into medical malpractice

November 28, 2018

Finding that it was not necessary to pinpoint the trigger date for when the clock began running on the statute of limitations in a medical malpractice case, the Indiana Court of Appeals reversed the denial of summary judgment against a physician, medial practice and hospital.

Three years after her father, John, died from congestive heart failure and chronic obstructive pulmonary disease in June 2012, Michelle Kendra filed a medical malpractice complaint. The unnamed physician, medical practice and hospital filed a motion for summary judgment, asserting Kendra’s lawsuit was untimely filed.

Kendra countered the cardiac pacemaker with defibrillator implanted into her father in 2006 was medically unnecessary and was used as a basis for the physician to perform numerous other procedures. She also asserted the statutory limitation period should be tolled because her father could not have known he did not meet the criteria for having the pacemaker implanted.

The Lake Superior Court pointed out Kendra did not become aware that what her father experienced in the last six years of his life had the potential of forming a basis for a claim of medical malpractice until October 2014. Acknowledging that ultimately it could be determined that the pacemaker and subsequent procedures were not the cause the father’s death, the trial court held the Kendra family should be not denied access to the courts because they did not know or did not discover any link to the implant.

Before the Court of Appeals, the physician, medical practice and hospital argued Kendra and her father were aware of the heart problems that led to the implantation. Moreover, Kendra contended her father suffered several physical and mental injuries as a direct consequence.

The appellate panel agreed that under Indiana Supreme Court precedent nothing else was required to trigger a duty to investigate the possibility of malpractice. It reversed the denial of summary judgment in Anonymous Physician, Anonymous Medical Practice, Anonymous Hospital v. Michelle Kendra, as Personal Representative of the Estate of John Kendra, Deceased, 18A-CT-323.

"Even if John and Michelle had no reason to suspect malpractice, reasonable diligence required them to inquire into the possibility of a claim before the proposed malpractice complaint was filed in 2015,” Judge Terry Crone wrote for the court. “We need not pinpoint the trigger date, but it was certainly no later than the date of John’s death in 2012, more than three years before the complaint was filed.”

ADVERTISEMENT

Recent Articles by Marilyn Odendahl