Indiana Appeals Court Permits Woman to Pursue Med Mal Action
Diane Zelman, a patient with severe back pain will be able to pursue a medical malpractice claim against her orthopedic surgeon according to the Indiana Court of Appeals. The Court ruled on December 17, 2017 that the two-year statute of limitations for Ms. Zelman did not start until the patient discovered the malpractice.
Zelman felt “intense pain” following the surgery and shared her concerns with Tekula but the surgeon maintained everything was fine. The patient sought out different specialists, receiving injections and pain medications along with physical therapy. She also met with another surgeon who told Zelman that a second back surgery would be “brutal” and had no guarantee it would be alleviate her discomfort.
In 2014, Zelman underwent a second back surgery. Afterward, the surgeon, Michael Coscia, M.D., said he had found there was no fusion. Also there were no pedicle screws which is extremely unusual since the screws are used as part of a fusion.
The next year, Zelman filed with the Indiana Department of Insurance a proposed complaint alleging medical negligence against Tekula and Central Indiana Orthopedics. The defendants filed a motion for summary judgment in the Delaware Circuit Court, alleging that the malpractice could have been discovered before the statute of limitations ran out. This motion was granted.
Zelman appealed to the Indiana Court of Appeals. The Court ultimately reversed the trial court and relied upon cases that held that the two-year limitation starts when the claimant either knew of the malpractice or learned of the facts that lead to the discovery of the malpractice. The Court of Appeals pointed out that Zelman consulted several medical professionals and was initially discouraged from undergoing a second surgery.
The pertinent ruling is in quotes here: “Given that the second surgery was required to discover the malpractice, and given that it was described as brutal with no guarantee of success, we cannot say as a matter of law that Zelman was not reasonably diligent when she did not have the second surgery sooner than she did,” Judge Elaine Brown wrote for the court. “Thus, we hold that a genuine issue of material fact exists as to when Zelman’s pain and diligent pursuit would have led her to discover that medical malpractice was the cause.”