Indiana Appellate Court Says Medical Malpractice Case Was Filed Too Late

162017_132140396847214_292624_nIn its decision filed on December 27, 2013, the Court of Appeals of Indiana (“Indiana Court of Appeals”) determined that the trial judge was correct in entering judgment in favor of the medical malpractice defendants where the plaintiff filed her medical malpractice claim more than two years after she knew or should have known that medical negligence may have caused her injuries.

The Relevant Underlying Facts

On June 23, 2010, the defendant doctor performed surgery on the plaintiff to implant a spinal cord stimulator, which took place at the defendant hospital. The plaintiff suffered persistent pain after the surgery and she repeatedly called the defendant doctor’s office.

On July 30, 2010, the plaintiff was hospitalized with an infection and exposed spinal cord stimulator wires were discovered. On August 4, 2010, the spinal cord stimulator was surgically removed, 42 days after it had been implanted.

On July 27, 2012, the plaintiff filed her complaint as well as a “Proposed Complaint” in the circuit court but did not contemporaneously file the Proposed Complaint with the Indiana Department of Insurance (“IDOI”). It was not until August 20, 2012 that the plaintiff filed a Proposed Complaint with the IDOI, in which she alleged that the defendant doctor had improperly implanted the spinal cord stimulator and that she had “discovered the malpractice as to the installation of the spinal cord stimulator when she was at the emergency room.” The plaintiff further alleged that the defendant hospital was liable for her damages because the defendant doctor acted within the scope of his employment or agency with the hospital.

The Indiana Medical Malpractice Act (“the Act”) requires claims to be filed within two years of the allegedly negligent act or omission. I.C. § 34-18-7-1(b). The filing of a proposed medical malpractice complaint with the IDOI tolls the applicable statute of limitations to and including a period of 90 days following the receipt of the opinion of the medical review panel by the claimant. I.C. § 34-18-7-3(a).

If discovery of the alleged malpractice and resulting injury is made within the two-year period after the occurrence of malpractice, a suit must be filed within the limitations period, unless it is not reasonably possible to do so. The “discovery date” is the date when the claimant discovered the alleged malpractice and resulting injury, or possessed enough information that would have led a reasonably diligent person to make such discovery. In order for the discovery date to be triggered, a plaintiff must be aware of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury.

The Indiana Court of Appeals determined that the plaintiff filed a Proposed Complaint with the IDOI more than two years after the spinal cord stimulator was surgically removed on August 4, 2010. The Indiana Court of Appeals held that the late filing of the plaintiff’s medical malpractice action was not excusable because she knew something was abnormal even prior to her emergency hospitalization on July 30, 2010, when her spinal area was red and inflamed, and she could feel rough bumps; the protruding wires were discovered in the emergency room on July 30, 2010 and the medical device was removed on August 4, 2010. The Indiana Court of Appeals held that these events were well within the limitations period; the plaintiff failed to file a Proposed Complaint with the IDOI within two years of the implantation surgery, which was the alleged act of malpractice.

The Indiana Court of Appeals affirmed the judgment that the trial court had entered in favor of the defendants.


If you or someone you know may have been injured as a result of medical malpractice in Indiana or in another U.S. state, you should promptly seek the legal advice of an Indiana medical malpractice attorney (or a medical malpractice attorney in your state) who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website or telephone us toll free at 800-295-3959 to be connected with Indiana medical malpractice lawyers or medical malpractice lawyers in your state who may assist you with your malpractice claim.

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This entry was posted on Saturday, January 4th, 2014 at 9:52 am. Both comments and pings are currently closed.


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