Riley Bennett Egloff Magazine January 2019 | Page 7

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. 3 Similarly, the circumstances alerting the patient to the injury or potential of
malpractice can vary widely. 4 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.” 5
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. 6 That is, the statute of limitations is tolled
“so that it does not commence running until the wrongful act ceases.” 7 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. 8 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. 9 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.” 10 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. 11
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. 12
The two year occurrence based statute of limitations can also be tolled by the equitable doctrine of fraudulent
concealment. 13 There are two types of fraudulent concealment: active and passive. 14 Passive concealment occurs
when the physician fails to disclose that which he knows, or in the exercise of reasonable care, should have
known. 15 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. 16 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. 17 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. 18
Finally, in “limited circumstances,” the physical incapacity of the patient can constitute yet a third ground for
tolling the limitations period. 19
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.
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