Last updated on August 7th, 2023
Medical malpractice occurs when a hospital, doctor, or other health care provider does not meet the appropriate standard of care. The Indiana courts have stated that the 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.
For example, let’s say a woman named Kristi underwent surgery to have wisdom teeth extracted. Unfortunately, there was an error made by the surgeon, but Kristi couldn’t tie her symptoms to the procedure for two months afterwards. The Indiana statute of limitations would be two years from the surgery date, not the date she realized the operation may have been botched.
However, acknowledging that malpractice claims are asserted in a variety of contexts and that a number of factors may delay a claimant’s knowledge that malpractice may have occurred, the Indiana courts have developed several exceptions to the two-year rule.
When a claimant cannot reasonably be expected to discover the alleged malpractice until well after the actual occurrence, Indiana courts have held that the statute of limitations is unconstitutional. A so-called “discovery-based” statute of limitations applies in this type of case. The court must determine when a claimant possessed enough information that, in the exercise of reasonable diligence, should have led to the discovery of the alleged malpractice and resulting injury. That date, known as the “trigger date,” is the date the two-year limitations period begins to run for such a claimant. As straightforward as this sounds, application to particular factual situations can be rather complex.
The length of time within which a claim must be filed after a “trigger date” varies with the circumstances, but these are the general rules:
The two-year occurrence-based statute of limitations can also be tolled by the doctrine of fraudulent concealment, either active or passive.
Passive concealment occurs when the physician fails to disclose that which he knows, or in the exercise of reasonable care, should have known. As an example, after reviewing a patient’s irregular mammogram, the doctor releases his patient from the hospital, failing to tell her to come in for a follow-up mammogram in three months.
Active concealment involves affirmative acts of concealment intended to mislead or hinder the patient from obtaining information concerning the malpractice. An example of this would be a failure of a doctor to disclose to his patient the misdiagnosis of the patient’s condition made by the doctor’s medical partner.
The principal significance of the distinction between active and passive fraudulent concealment lies in the different points in time at which a patient must commence a malpractice action. 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, a patient’s duty of due diligence in filing a claim does not commence until such actual or reasonably possible discovery of the malpractice.
In some circumstances, such as where the physician operates on the wrong body part, 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.
What about a case where a doctor examines his patient several times over the course of years of treatment and mistakenly continues to treat a cancerous growth as benign, resulting in death to his patient?
AN EXPERT TIP FROM DOUG MANN
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. In a situation like this, the statute of limitations is tolled so that it does not commence running until the wrongful act ceases.
Are you thinking about filing a medical malpractice lawsuit for your or a loved one’s injuries? You can’t afford to miss a filing deadline or you’ll risk having your case be dismissed. Contact us today to help you navigate through the maze of statute of limitations rules.
If you or a loved one has been seriously injured, please fill out the form below for your free consultation or call us at 1.937.222.2222
I am glad I chose DGMS for my personal injury case ! Sometimes I would call for update’s multiple times and yet they were patient and understanding. Crystal has done a phenomenal job thus far. Mr. Dominic Z. has done an awesome job as well with follow-up emails and ensuring we get the best results. I look forward to the end result as they are determined to get the best.
My attorney was/is Dominic Zambelli and from the very start, my experience with him was amazing. He explained what I needed to do for the case, the timeline, and put my mind at ease immediately. Fast forward six months, my case is settled and I am very happy with the result. If you are ever, and I mean EVER, looking for an honest, transparent, and diligent lawyer, call DGM&S and ask for Dominic. You will not be disappointed.
After an accident, and being inundated with offers from out-of-town lawyers, I called DGMS, and I am glad I did. They took over and I received a maximum payout very quickly after all the medical was done. Especially, Amy K. who always took my calls, and answered all my questions promptly. Thanks Amy K.
201 East 5th St.