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.
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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.
Triggering the Limitations Period
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.
Understanding the Trigger Date
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:
- A patient whose trigger date is more than two years after the occurrence of malpractice may file a malpractice claim within two years of the trigger date.
- 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.”
- 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.”
Other Statute of Limitations Considerations
Doctrine of Fraudulent Concealment
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.
Doctrine of Continuing Wrong
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.