Medical Malpractice Act
Manley v. Sherer (Ind. August 8, 2013)
In this medical malpractice case, the Supreme Court addressed two issues: 1) the Medical Malpractice Act’s statute of limitations; and 2) the application of the Medical Malpractice Act to claims against a healthcare provider brought by someone who was not a patient of the healthcare provider.
The facts of this case are as follows. The Plaintiff, Mary Manley, was involved in an automobile accident on November 27, 2006, with Kimberly Zehr. At the scene of the accident, Ms. Manley overheard Ms. Zehr say that "she should not be driving because of her medical condition." Ms. Manley later learned of an undated letter from Ms. Zehr’s physician, the defendant in this matter, Dr. Sherer, stating that Ms. Zehr’s medical condition in combination with the medications prescribed by Dr. Sherer may have contributed to the automobile accident. The last date on which Dr. Sherer treated Ms. Zehr was November 21, 2008.
With respect to the first issue, on November 25, 2008, Ms. Manley filed a proposed complaint with the Indiana Department of Insurance against Dr. Sherer and his medical group. Ms. Manley claimed that Dr. Sherer failed to warn Ms. Zehr not to drive while she was taking her medication.
Dr. Sherer filed a motion for summary judgment, arguing that the statute of limitations barred the claim. In medical malpractice cases, a plaintiff must file a claim within two years of the malpractice. The last date on which malpractice could have occurred in this case was on the last date Dr. Sherer treated Zehr, November 21, 2006, more than two years before Ms. Manley filed the claim.
However, courts will not strictly apply the two-year limitation if it was not "reasonably possible for [plaintiffs] to present the claim in the time remaining after discovery and before the end of the statutory period." Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005) In order for the date to be triggered, a plaintiff must be aware of "facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury." Id. at 1171 Van Dusen v. Stotts, 712 N.E.2d 491, 497 (Ind. 1999).
The Court found that the statement at the scene of the accident should not have led Ms. Manley to suspect malpractice. The Court found that, instead, Ms. Manley did not have such knowledge until she learned of the letter written by Dr. Sherer suggesting that Ms. Zehr’s medicine contributed to the accident. The Court explained:
"The plaintiffs reasonably contend that it was not until this point that they possessed knowledge of the facts necessary to investigate Ms. Zehr's medical history and discover the alleged malpractice. However, because the letter is undated, it is unknown on what date the letter came to the attention of the plaintiffs. It is thus indiscernible whether the plaintiffs could have pursued their malpractice claim within the two-year statutory limit, or, if not, whether they acted within a reasonable time as required by our caselaw."
An interesting question is whether, if the date on which Ms. Manley became aware of the letter is determined, the defendants can renew their request for summary judgment based on the statute of limitations.
In this decision, the Supreme Court relied heavily on its 2005 decision Booth v. Wiley, an important case regarding the Medical Malpractice Act’s statute of limitations that sharply divided the Supreme Court and inspired two dissenting opinions. In Booth, the majority of the Supreme Court found that a question of fact existed as to whether the Medical Malpractice Act’s statute of limitations barred claims based on malpractice that occurred more than two years before the plaintiffs filed their complaint. The majority identified the following procedure to use when applying the Medical Malpractice Act’s statute of limitations:
"Initially, a court must determine the date the alleged malpractice occurred and determine the discovery date—the date when the claimant discovered the alleged malpractice and resulting injury, or possessed enough information that would have led a reasonably diligent person to make such discovery. If the discovery date is more than two years beyond the date the malpractice occurred, the claimant has two years after discovery within which to initiate a malpractice action. But if the discovery date is within two years following the occurrence of the alleged malpractice, the statutory limitation period applies and the action must be initiated before the period expires, unless it is not reasonably possible for the claimant to present the claim in the time remaining after discovery and before the end of the statutory period. In such cases where discovery occurs before the statutory deadline but there is insufficient time to file, we have not previously addressed how much time should be permitted. But because Boggs permits such an action to be commenced after the statutory two-year occurrence-based period when timely filing is not reasonably possible, we hold that such claimants must thereafter initiate their actions within a reasonable time."
Booth, 839 N.E.2d at 1172.
The former Chief Justice, Randall Shepherd, dissented. Chief Justice Shepherd stated that the majority’s decision “takes us light years from the restrained application of constitutional principles reflected inMartin v. Richey and turns the medical malpractice statute of limitations into a very liberal rule without so much as a word about why the Indiana Constitution requires the result.” Booth<, 839 N.E.2d at 1178 (Shepherd, C.J., dissenting).
Justice Sullivan also dissented, stating that the “result of the Court's opinion today seems to me to be that the medical malpractice statute of limitations is tolled whenever the alleged malpractice is associated with a pre-existing condition until the patient receives an expert opinion that the pain or symptoms are the product of a particular provider's medical negligence. I believe that this conflicts with the mandate of the Medical Malpractice Act.” Booth, 839 N.E.2d at 1178-79 (Sullivan, J., dissenting).
The Supreme Court’s decision in this case follows the rationale of the Booth majority and illustrates the accuracy of Justice Sullivan and Justice Shepherd’s dissenting opinions.
The other important aspect of the Supreme Court’s decision is its explanation of why the Medical Malpractice Act applies to this case. Ms. Manley argued that the Medical Malpractice Act did not apply because she was not a patient of Dr. Sherer. The Supreme Court rejected the argument:
"The plaintiffs have treated it otherwise by filing their proposed complaint with the Department of Insurance as required by the Act. They may not now contend that the Medical Malpractice Act and its time limitation do not apply to their claim."
The Supreme Court’s statement suggests that by filing a proposed complaint with the Department of Insurance, a plaintiff waives or is estopped from making the argument that the claim falls outside the Medical Malpractice Act. Any attorney who deals with medical malpractice should be aware of this possible rule and its implications.
- William Ramsey