Fort Wayne Indiana Personal Injury Lawyer and Attorney Blog

Medical Provider Jukes Statute of Limitations and Gets Suit Thrown Out

By Jack H. FarnbauchFebruary 28, 2018

The estate of Margo Sue Rumell sued an ambulance service and EMTs individually after she was treated for a medical episode she experienced while boating on Simonton Lake in Elkhart on July 19, 2013.  EMTs from Osolo Emergency Medical Services Inc. sought to resuscitate her, including putting in a endotracheal breathing tube. A coroner’s verdict concluded the cause of Rumell’s death was an abnormal enlargement of the heart “complicated by moderate coronary artery disease; and by the placement of the esophageal endotracheal tube.” The final coroner’s report did not mention where the endotracheal tube was placed.

After the the estate filed a proposed medical malpractice claim with the Indiana Department of Insurance on July 9, 2015, questions arose about whether the defendants were qualified health care providers covered by the Medical Malpractice Act. IDOI initially determined in a letter dated July 22, 2015, that defendants were non-qualified, but later informed an attorney for the estate that the department “lacked definitive proof.” Because of this confusion, the estate did not file suit in Elkhart Superior Court until October 2015. Because of this, in early 2017, the court entered summary judgment in favor of the EMTs. The trial court held the complaint was barred by the two-year statute of limitations.

The estate then appealed to the Indiana Court of Appeals. The majority said there is not a doubt that the statute of limitations began July 20, 2013, which is when the autopsy was performed.  Rumell argued, however, that a letter she received on its preliminary complaint from the IDOI on July 22, 2017, did not recommence the statute of limitations.

“We agree with the trial court that Lusk [Lusk v. Swanson, 753 N.E.2d 748 (Ind. Ct. App. 2001)] is perhaps most instructive with regard to the facts before us.  As noted above, in Lusk, the plaintiff did not initiate the communication that resulted in the delay in filing.  Rather, a second letter from the IDOI contained conditional language in regard to the qualified status of the provider.  First, this court held that the conditional language did not contradict the information in the first letter.  Second, this court rejected the plaintiff’s claim that the statute of limitations remained tolled until a third letter from the IDOI again informing the plaintiff that the defendant was not a qualified health care provider, noting that it was incumbent on the plaintiff to inquire about the status of the defendant upon receiving the second letter.  At most, in both Lusk and this case, the subsequent communication with or from the IDOI suggested only the possibility that the IDOI’s initial determination as to the status of the defendant could be changed,” the majority said.

The majority agreed with the defendants that Rumell could have beat the running statute of limitations by filing a complaint with the trial court before receiving a letter back from the IDOI.

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