Riley Bennett Egloff Magazine January 2019 | Page 9

Case Study 2 – Doctrine of Continuing Wrong Rejected:
• July 1991 – Patient finds mass in breast and undergoes mammogram per order of PCP.
Mammogram is read by radiologist at Radiology Group who recommends that Patient re-
turn for mammogram in one year.
• July 28, 1992 – Patient has second mammogram. Radiology Group’s radiologist compares
1992 mammogram with 1991 mammogram and recommends biopsy.
• August 12, 1992 – Biopsy confirms malignancy.
• August 28, 1993 – Patient dies of breast cancer.
• July 1, 1994 – Patient’s husband files proposed complaint against Radiology Group.
• Radiology Group moves for summary judgment based on running of two year occurrence
based statute of limitations.
• Patient’s husband responds that a question of fact exists as to whether Radiology Group’s
interpretation of the July 1991 mammogram and July 1992 mammogram constitutes a con-
tinuing wrong.
• Radiology Group responds that a single incident (an alleged misread of the July 1991 mam-
mogram) cannot form the basis for application of the doctrine of continuing wrong.
• Indiana Supreme Court rejected husband’s argument and held that because Radiology
Group’s actions consisted solely of interpreting mammograms ordered by Patient’s PCP,
there was no continuing physician-patient relationship between Radiology Group and Pa-
tient and doctrine of continuing wrong did not apply. The proposed complaint was untimely.
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Occurrence Date: July 1991
Trigger Date: August 12, 1992
Statute of Limitations: July 1993
Case Study 3 –Continuation of MD/Patient Relationship did not Toll Statute of
Limitations:
• February 16, 1993 to February 28, 2001 – Patient treats with Cardiologist.
• December 1995 - Cardiologist reads echocardiogram as concerning for infectious process.
• January 5, 1996 – Cardiologist performs transesophageal echocardiogram to further evaluate
for suspected endocarditis.
• February 22, 1996 – Patient starts on antibiotic per recommendation of Cardiologist and
Infectious Disease Specialist.
• Shortly after starting on antibiotic, Patient begins to experience adverse reactions including
dizziness, nausea and imbalance.
• March 16, 1996 – Patient is admitted to hospital and antibiotic is discontinued.
• April 1, 1996 – Patient is seen by another physician who concludes symptoms were caused
by antibiotic.
• August 1996 - Patient is told he did not have evidence of endocarditis.
• February 28, 2001 – Cardiologist and Patient’s physician/patient relationship ends.
• March 14, 2002 – Patient files proposed complaint against Cardiologist alleging negligence,
passive and active fraudulent concealment and continuing wrong.
• April 23, 2004 – Cardiologist files Petition for Preliminary Determination of Law for
Summary Judgment on the basis that Patient’s claim was barred by the statute of limitations.
• Patient responds that the statute of limitations was tolled by the doctrine of continuing
wrong and fraudulent concealment until the date on which his physician-patient relationship
with Cardiologist ended on February 28, 2001.
• The Indiana Court of Appeals rejected Patient’s argument and determined that by August
26, 1996, Patient was aware of facts that should have led him to discover his cause of action
stemming from Cardiologist’s alleged misread of his December 1995 echocardiogram.
The Court then held: “The doctrine of continuing wrong will not prevent the statute of
limitations from beginning to run when the plaintiff learns of facts which should lead to the
discovery of his cause of action even if his relationship with the tortfeasor continues beyond
that point.” Proposed complaint against Cardiologist was untimely.
Occurrence Date: December 1995
Trigger Date: August 26, 1996
Statute of Limitations: December 1997
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