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‘Reasonable Diligence’ Necesssary to Avoid Medical Malpractice Suit Missing the Statute of Limitations

By Jack H. FarnbauchMarch 23, 2019

Three years after her father, John, died from congestive heart failure and chronic obstructive pulmonary disease in June 2012, Michelle Kendra filed a medical malpractice complaint against Anonymous Physician (AP), Anonymous Medical Practice (AMP), and Anonymous Hospital (AH). Kendra alleged that the medical malpractice stemmed from the AP implanting a cardiac pacemaker with a defibrillator (CRT-D) in 2006 unnecessarily and performed a number of procedures related to the CRT-D. The AP, AMP, and AH filed a motion for summary judgment in the Lake County Superior Court, asserting Kendra’s lawsuit was not allowed under the statute of limitations. 

Kendra filed an opposing memorandum, in which she asserted that the CRT-D was medically unnecessary and “was used as a basis” for AP to perform numerous other procedures. Kendra also asserted that the statutory limitation period should be tolled because John “could not have known that he did not meet the criteria for the implantation” of a CRT-D. Kendra stated that she found out about AP’s misstatements and potentially unnecessary procedures and surgeries in or around October of 2014 when she saw a newspaper article and a news story on television about the misrepresentations of AP.

Lake County Superior Court pointed out Kendra did not become aware that what her father experienced in the last six years of his life had the potential of forming a basis for a claim of medical malpractice until October 2014. Acknowledging that ultimately it could be determined that the pacemaker and subsequent procedures were not the cause the father’s death, the trial court held the Kendra family should be not denied access to the courts because they did not know or did not discover any link to the implant.

Before the Court of Appeals, the AP, AMP, and AH argued Kendra and her father were aware of the heart problems that led to the implantation. The Court of Appeals agreed with this argument and stated that "even if John and Michelle had no reason to suspect malpractice, reasonable diligence required them to inquire into the possibility of a claim before the proposed malpractice complaint was filed in 2015, and “we need not pinpoint the trigger date, but it was certainly no later than the date of John’s death in 2012, more than three years before the complaint was filed.”

You can read more here.