Riley Bennett Egloff Magazine January 2019 | Page 8

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.” 20
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. 21 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. 22 A patient’s “lay suspicion” that there may have been malpractice
is generally not sufficient to trigger the two-year period. 23 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. 24 An unexplained failure to do so does not excuse a failure to timely file a claim. 25 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. 26
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. 27
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
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Riley Bennett Egloff LLP - January 2019