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Thursday, November 13, 2008

Ind. Decisions - Two today from Supreme Court

Each of the following cases was granted transfer with opinion.

In Lloyd Overton v. Marshall Grillo, D.O., et al., an 8-page, 3-2 opinion, Justice Boehm writes:

We hold that a medical malpractice claim for allegedly misreading a mammogram is barred by the two-year statute of limitations when the plaintiff learned of cancer with approximately nine months remaining in the limitations period. * * *

The trial court’s grant of summary judgment for Dr. Grillo is affirmed.
Sullivan, J., concurs.
Shepard, C.J., concurs in result.
Dickson, J., dissents with separate opinion in which Rucker, J., concurs. [which concludes] In her separate concurring-in-result opinion in the Court of Appeals, Judge Robb believed that the plaintiff "could have reasonably believed that in July 1999, there was no malignancy, and that the cancer had first appeared sometime in the fifteen months between that mammogram and her September 2001 mammogram." Overton v. Grillo, No. 64A04-0605-CV-278 (Ind. Ct. App. 2007). Slip op. at 11. I agree.

I conclude that Dr. Grillo did not uncontrovertibly establish that the plaintiff, upon learning that she had metastasized breast cancer in October 2000, in the exercise of reasonable diligence, "would" or "should" have discovered that malpractice had occurred in her routine mammography in July, 1999. In my view, this was a factual issue inappropriate for summary judgment. For these reasons, I dissent.

In Victor Herron v. Anthony A. Anigbo, M.D. , a 16-page, 3-2 opinion, Justice Boehm writes:
The Indiana Medical Malpractice Act provides for an occurrence-based statute of limitations, i.e., a medical malpractice claim must be filed within two years after the act or omission alleged to constitute malpractice. We have held that the statute is constitutional on its face but may violate the Indiana Constitution if applied to a plaintiff who despite exercise of reasonable diligence does not learn of the injury or malpractice before the period expires. We elaborate what exercise of reasonable diligence requires when, as here, the limitations period is occurrence-based. Limitations issues in most cases are resolved as a matter of law. There may, however, be genuine issues of material fact as to when the plaintiff in exercise of reasonable diligence should learn of the injury or disease and that it may be attributable to malpractice. If limitations issues cannot be resolved as a matter of law on summary judgment, factual disputes are to be submitted to the trier of fact. * * *

[In this case] Herron claimed only ignorance of the extent of his injuries, and that is as a matter of law an insufficient basis to find the occurrence-based limitations period to violate the right to a remedy afforded by article I, section 12 of the Indiana Constitution.

In sum, claims based on negligence in the May 6, 2002 surgery are barred because Herron failed as a matter of law to pursue his claim with reasonable diligence within the period required by the statute. An occurrence-based limitations period can produce harsh results. If Herron’s surgery was below the standard of care, this is such a case. Herron’s condition was and is severe, and it is understandable that his focus was on medical outcomes, not legal remedies, in the more than two years following the surgery. But the legislature has prescribed an occurrence-based limitations period, and Herron and all other patients are charged with knowledge of the law, however unrealistic that assumption may be in a given case. Any claim of malpractice in the surgery is therefore barred by the occurrence-based limitation. * * *

The trial court’s grant of summary judgment is affirmed.
Sullivan, J., concurs.
Shepard, C.J., concurs in result with separate opinion.
Dickson, J., dissents with separate opinion in which Rucker, J., concurs.

SHEPARD, Chief Justice, concurring in result. The General Assembly’s decision to adopt an occurrence-based statute of limitations for medical malpractice claims was long ago upheld against a substantial list of constitutional challenges in Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 404 N.E.2d 585 (1980). We later held that the statute might be unconstitutional as applied if the nature of a patient’s particular affliction was such that it could not be discovered within the period chosen by the legislature. Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999). Nothing in the present facts prevented Mr. Herron from filing his claim on time, and I thus join in affirming the trial court.

Dickson, J., dissenting. [the dissent begins] I dissent, believing that the majority today would create an unprecedented new and rigorous barrier preventing injured patients a reasonable opportunity to access the courts to seek remedy for medical malpractice claims, a barrier that fosters a climate of suspicion and doubt between patients and their health care providers. I also dissent from the majority's application of its new standard to the facts presented.

Posted by Marcia Oddi on November 13, 2008 02:17 PM
Posted to Ind. Sup.Ct. Decisions