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[1]Navigating Indiana’s Medical Malpractice Act Statute of Limitations

Indiana’s Medical Malpractice Act (“Act”) statute of limitations for pursuing a claim against a qualified health care provider reads as follows:

(a) This section applies to all persons regardless of minority or other legal disability, except as provided in subsection (c).

(b) A claim, whether in contract or tort, may not be brought against a health care provider based upon a professional service or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor’s eighth birthday to file.

(c) If a patient meets the criteria stated in IC 34-18-8-6(c) [claims not greater than $15,000], the applicable limitations period is equal to the period that would otherwise apply to the patient under subsection (b) plus one hundred eighty (180) days. 

Ind. Code §34-18-7-1.  This law is an “occurrence-based” statute of limitations, “meaning that an action for medical malpractice generally must be filed within two years from the date the alleged negligent act occurred rather than from the date it was discovered.”[2] While the Indiana Supreme Court has upheld “the facial constitutionality” of Ind. Code §34-18-7-1, it has also held that if an act of malpractice and resulting injury cannot be discovered during the limitations period given the nature of the asserted malpractice and the medical condition, the occurrence-based statute of limitations cannot be enforced “without doing violence to the Indiana Constitution.”[3] 

Since Van Dusen and Martin, Indiana appellate courts have grappled with the application of the Act’s statute of limitations under numerous factual scenarios and have attempted to provide some guidance for determining the deadline for filing a malpractice claim.  In 2008, the Indiana Supreme Court recognized the difficulty of uniformly applying Ind. Code §34-18-7-1, because medical malpractice claims may be asserted in a variety of contexts including, among others:  failure to diagnose an unknown progressive condition such as cancer; failure to arrest or cure a known progressive condition such as a degenerative eye condition; or substandard treatment such as surgery on the wrong limb.[4]  Similarly, the circumstances alerting the patient to the injury or potential of malpractice can vary widely.[5] Thus, when considering whether the Act’s statute of limitations may constitutionally bar a malpractice claim, a court must first “determine the date the alleged malpractice occurred and determine the discovery date [trigger date]—the date when the patient discovered the alleged malpractice and resulting injury, or possessed enough information that would have led a reasonably diligent person to make such discovery.”[6]

Defining the Date of “Occurrence” of Malpractice

As noted above, in some circumstances, such as where the physician operates on the wrong limb, the date of the occurrence of malpractice is obvious.  However, where the care at issue is not confined to a single act or physician-patient encounter, the date of occurrence may not be as obvious.  Indiana appellate courts have held that in situations where an entire course of conduct combines to produce an injury, the conduct may constitute a continuing wrong so as to delay the running of the statute of limitations.[7] That is, the statute of limitations is tolled “so that it does not commence running until the wrongful act ceases.”[8]  This so called “doctrine of continuing wrong” is not an equitable doctrine but, rather, is a legal concept used to define when an act, omission or neglect [i.e. the “occurrence”] took place.[9]  While plaintiffs have frequently attempted to invoke the doctrine of continuing wrong to extend the occurrence based statute of limitations, appellate courts apply the doctrine narrowly.[10] For instance, “the prescription of medicine constitutes a single act of malpractice and not an entire course of conduct, such that the doctrine of continuing wrong does not apply.”[11]  When the alleged continuing wrong is a failure to diagnose, the omission cannot extend beyond the time the physician last had opportunity to diagnosis and treat.[12] Nevertheless, patients may not sit idly by after discovering facts that alert them that they may have a cause of action, and the doctrine of continuing wrong will not prevent the statute of limitations from beginning to run when a patient learns of facts which should lead to the discovery of a cause of action even if the physician-patient relationship continues beyond that point.[13] 

The two year occurrence based statute of limitations can also be tolled by the equitable doctrine of fraudulent concealment.[14]  There are two types of fraudulent concealment: active and passive.[15]  Passive concealment occurs when the physician fails to disclose that which he knows, or in the exercise of reasonable care, should have known.[16]  Active concealment involves affirmative acts of concealment intended to mislead or hinder the patient from obtaining information concerning the malpractice.  There must be some affirmative act which amounts to more than passive silence.[17]  The principal significance of the distinction between the two branches of the fraudulent concealment doctrine, active and passive, lies in the different points in time at which a patient must commence a malpractice action.[18]  When the concealment is passive, a patient’s duty of due diligence in filing a claim is triggered by the termination of the physician-patient relationship or by the actual discovery or reasonable opportunity to discover the malpractice, whichever occurs first.  When the concealment is active, patient’s duty of due diligence in filing a claim does not commence until such actual or reasonably possible discovery of the malpractice.[19] 

Finally, in “limited circumstances,” the physical incapacity of the patient can constitute yet a third ground for tolling the limitations period.[20] 

Triggering the Limitations Period

The length of time within which a claim must be filed after a “trigger date” varies with the circumstances: 

1. A patient whose trigger date is more than two years after the occurrence of malpractice may institute a claim for relief within two years of the trigger date. 

2. If a trigger date is within two years of the date of malpractice, the patient must file before the two year occurrence based statute of limitations expires “if possible in the exercise of due diligence.”

3. If a trigger date is within two-years of the date of malpractice but in the exercise of due diligence a claim cannot be filed within the limitations period, the patient must initiate the action “within a reasonable time after the trigger date.”[21]

 

But what is the “trigger date”?  The trigger date is the time when a patient either knows of the malpractice and the resulting injury or learns of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and resulting injury.[22]  Reasonable diligence in the context of discovering medical malpractice claims requires a patient to take action if he or she knows of both the injury and/or disease and the treatment that either caused or failed to identify or improve it.[23] A patient’s “lay suspicion” that there may have been malpractice is generally not sufficient to trigger the two-year period.[24] However, when it is undisputed that a patient’s doctor has expressly informed a patient that he has a specific injury and that there is a reasonable possibility, if not a probability, that the specific injury was caused by a specific act at a specific time, then a patient is generally deemed to have sufficient facts to require him to seek promptly any additional medical or legal advice needed to resolve any remaining uncertainty or confusion he may have regarding the cause of his injury and any legal recourse he may have.[25] An unexplained failure to do so does not excuse a failure to timely file a claim.[26] Also, neither inconvenience nor difficulty in proceeding is enough to toll the statute, if diligence would lead to the discovery of facts giving rise to the claim.[27] 

Application of Law to Facts:

Putting the law into context, below are brief summaries of various factual scenarios presented to and considered by Indiana appellate courts in determining whether a proposed complaint was timely filed under Indiana’s occurrence based statute of limitations.

Case Study 1 – Occurrence Based Statute of Limitations Deemed Unconstitutional as to Patient:

  • March 13, 1991 – Patient undergoes mammogram and interpreting radiologist notes biopsy may be indicated.
  • March 14, 1991 – Patient schedules excisional biopsy.
  • March 18, 1991 – Patient’s gynecologist instructs Patient to cancel her excisional biopsy and recommends needle aspiration.
  • March 20, 1991 – Gynecologist performs Patient’s needle aspiration, which reveals no malignancy. Gynecologist does not recommend follow-up excisional biopsy.
  • October 1991 – Patient’s last office visit with Gynecologist.
  • April 1994 - Patient experiences increased pain from lump in breast.
  • April 1994 - Core biopsy reveals malignancy.
  • October 14, 1994 – Patient files proposed complaint against Gynecologist.
  • Indiana Supreme Court held Patient’s proposed complaint was timely.  The application of the occurrence-based statute of limitations was deemed unconstitutional as to Patient, because she had a disease with a long latency period and which did not manifest significant pain or symptoms until several years after the asserted malpractice.[28]  

 

Occurrence Date:  March 1991 (Of note – Patient did not allege the failure to diagnose was a continuing wrong.  The Indiana Supreme Court suggested the doctrine of continuing wrong would have extended the occurrence date to October 1991 – date of last office visit with Dr. Richey.)

Trigger Date:  April 1994 (when biopsy revealed malignancy)

Statute of Limitations:  April 1996

 

 

Case Study 2 – Doctrine of Continuing Wrong Rejected:

  • July 1991 – Patient finds mass in breast and undergoes mammogram per order of PCP.  Mammogram is read by radiologist at Radiology Group who recommends that Patient return for mammogram in one year.
  • July 28, 1992 – Patient has second mammogram.  Radiology Group’s radiologist compares 1992 mammogram with 1991 mammogram and recommends biopsy.
  • August 12, 1992 – Biopsy confirms malignancy.
  • August 28, 1993 – Patient dies of breast cancer.
  • July 1, 1994 – Patient’s husband files proposed complaint against Radiology Group.
  • Radiology Group moves for summary judgment based on running of two year occurrence based statute of limitations.
  • Patient’s husband responds that a question of fact exists as to whether Radiology Group’s interpretation of the July 1991 mammogram and July 1992 mammogram constitutes a continuing wrong.
  • Radiology Group responds that a single incident (an alleged misread of the July 1991 mammogram) cannot form the basis for application of the doctrine of continuing wrong.
  • Indiana Supreme Court rejected husband’s argument and held that because Radiology Group’s actions consisted solely of interpreting mammograms ordered by Patient’s PCP, there was no continuing physician-patient relationship between Radiology Group and Patient and doctrine of continuing wrong did not apply. The proposed complaint was untimely. [29]

Occurrence Date:  July 1991

Trigger Date:  August 12, 1992

Statute of Limitations:  July 1993

 

Case Study 3 –Continuation of MD/Patient Relationship did not Toll Statute of Limitations:

  • February 16, 1993 to February 28, 2001 – Patient treats with Cardiologist.
  • December 1995 - Cardiologist reads echocardiogram as concerning for infectious process.
  • January 5, 1996 – Cardiologist performs transesophageal echocardiogram to further evaluate for suspected endocarditis.
  • February 22, 1996 – Patient starts on antibiotic per recommendation of Cardiologist and Infectious Disease Specialist.
  • Shortly after starting on antibiotic, Patient begins to experience adverse reactions including dizziness, nausea and imbalance.
  • March 16, 1996 – Patient is admitted to hospital and antibiotic is discontinued.
  • April 1, 1996 – Patient is seen by another physician who concludes symptoms were caused by antibiotic.
  • August 1996 - Patient is told he did not have evidence of endocarditis.
  • February 28, 2001 – Cardiologist and Patient’s physician/patient relationship ends.
  • March 14, 2002 – Patient files proposed complaint against Cardiologist alleging negligence, passive and active fraudulent concealment and continuing wrong.
  • April 23, 2004 – Cardiologist files Petition for Preliminary Determination of Law for Summary Judgment on the basis that Patient’s claim was barred by the statute of limitations.
  • Patient responds that the statute of limitations was tolled by the doctrine of continuing wrong and fraudulent concealment until the date on which his physician-patient relationship with Cardiologist ended on February 28, 2001.
  • The Indiana Court of Appeals rejected Patient’s argument and determined that by August 26, 1996, Patient was aware of facts that should have led him to discover his cause of action stemming from Cardiologist’s alleged misread of his December 1995 echocardiogram. The Court then held: “The doctrine of continuing wrong will not prevent the statute of limitations from beginning to run when the plaintiff learns of facts which should lead to the discovery of his cause of action even if his relationship with the tortfeasor continues beyond that point.” Proposed complaint against Cardiologist was untimely.

Occurrence Date:  December 1995

Trigger Date:  August 26, 1996

Statute of Limitations:  December 1997

 

Case Study 4:  Incapacity of Patient did not Toll Statute of Limitations:

  • March 6, 2002 – After fall at home rendering him a quadriplegic, Patient undergoes spinal surgery with placement of a bone graft and plate by Surgeon.
  • Patient remains in hospital and suffers infection and respiratory issues requiring placement on a ventilator for 9 months.
  • November 2003 – A second physician informs Patient that his condition has deteriorated and that a “likely cause of the deterioration was negligent follow-up care.”
  • November 11, 2003 – Patient undergoes spinal revision surgery including removal of bonegraft and plate placed by Surgeon and application of a halo.
  • January 22, 2003 – Patient is unable to be transported by car, requires oxygen and still requires halo.
  • March 5, 2004 – Patient still in halo but able to speak.
  • December 7, 2004 – Patient files proposed complaint against Surgeon alleging the March 2, 2002 surgery was negligently performed.
  • Surgeon files motion for summary judgment based on running of the statute of limitations.
  • Patient responds that he did not learn until November 2003 that he may have been a victim of substandard care and that his disability prevented him from investigating a claim up to that point.
  • While that Indiana Supreme Court empathized with Patient’s severe debility, it noted that Patient failed to demonstrate any barrier to the assertion of a claim within two years following his March 6, 2002 surgery.
  • As a matter of law, 4 months (from November 2003 to March 6, 2004) was sufficient to file a malpractice claim unless Patient was not reasonably able to consult an attorney who could investigate and file a claim within that time period.
  • Summary judgment was deemed appropriate.  [30]

Occurrence Date:  March 6, 2002

Trigger Date:  November 2003

Statute of Limitations:  March 6, 2004

 

Case Study 5: Trigger Date is more than two years after the Occurrence Date:

  • April 25, 1993 – Patient undergoes reconstructive surgery with breast implants by Surgeon.  Per Patient’s preference, Surgeon places saline implants. 
  • January 1984 – Patient begins another round of treatment requiring replacement of her existing breast implants.  Patient contends Surgeon represented the new implants would also be saline.
  • November 1988 – Patient returns to Surgeon with drainage from her breast.
  • January 1992 – Patient learns of media reports concerning patient complications related to leaking silicone breast implants.  Patient calls Surgeon’s office and is reassured her implants are primarily saline.
  • February 1992 – Patient secures her own medical records and discovers her replacement implants were silicone.
  • April 20, 1992 – Patient files proposed complaint against Surgeon.
  • Surgeon files Motion for Summary Judgment based on running of statute of limitations.
  • The Indiana Supreme Court concluded Patient’s proposed complaint was timely, as there was nothing in the record to demonstrate that in the exercise of reasonable diligence she should have suspected she had a cause of action against Surgeon before 1992. Thus, the statute of limitations on Patient’s claim did not start to run until February 1992. [31]

Occurrence Date: January 1984

Trigger Date:  February 1992

Statute of Limitations:  February 1994


This article is not intended to be an exhaustive review and analysis of case law in which Indiana Courts have reviewed and interpreted the Medical Malpractice Act’s occurrence based statute of limitations.  Instead, the goal of this article is to demonstrate that the timeliness of a proposed complaint is not always as obvious as it may appear at first blush and potential statute of limitations defenses should be routinely considered.


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[1]

[2] Houser v. Kaufman, 972 N.E.2d 927 (Ind. Ct. App. 2012), trans. denied. (citation omitted).

[3] Van Dusen v. Stotts, 712 N.E.2d 491 (Ind. 1999); Martin v Richey, 711 N.E.2d 1273 (Ind. 1999).

[4] See, e.g., Herron v Anigbo, 897 N.E.2d 444 (Ind. 2008).

[5] Id.

[6] Booth v. Wiley, 839 N.E.2d 1168 (Ind. 2005).

[7] Frady, 497 N.E.2d at 622; Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692 (Ind. 2000).

[8] Coffer v Arndt, 732 N.E.2d 815 (Ind.Ct.App. 2000).

[9] Havens v Ritchey, 582 N.E.2d 792 (Ind. 1991).

[10] Szamocki v Anonymous Doctor, 70 N.E.3d 419 (Ind.Ct.App. 2017).

[11] Id.

[12] Coffer, supra.

[13] Palmer v. Gorecki, 844 N.E.2d 149 (Ind.Ct.App. 2006).

[14] Biedron v. Anonymous Physician 1, 106 N.E.3d 1079 (Ind.Ct.App. 2018). 

[15] Id.

[16] Cyrus v. Nero, 546 N.E.2d 328 (Ind.Ct.App. 1989).

[17] Biedron, supra, citing French v. Hickman Moving & Storage, 400 N.E.2d 1384 (Ind.Ct.App. 1980). 

[18] Hughes v. Glaese, 659 N.E.2d 516 (Ind. 1995).

[19] Id. (Internal citations omitted).

[20] Herron, supra.

[21] Id.

[22] Id.

[23] Jeffrey v. Methodist Hospitals, 956 N.E.2d 151 (Ind.Ct.App. 2011).

[24] Id. 

[25] Id. 

[26] Williams v. Adelsperger, 918 N.E.2d 440 (Ind. Ct. App. 2009). 

[27] Id. 

[28] Martin, supra.

[29] Boggs, supra

[30] Herron v. Anigbo, 897 N.E.2d 444 (Ind.2008).

[31] Halbe v. Weinberg, 717 N.E.2d 876 (Ind.1999).

 

© Riley Bennett Egloff LLP

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