Riley Bennett Egloff Magazine January 2019 | Page 10

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. 29
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. 30
Occurrence Date: January 1984
Trigger Date: February 1992
Statute of Limitations: February 1994
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Riley Bennett Egloff LLP - January 2019