Medical Malpractice Cause of Action Not Tolled Pending Second Opinion

The Indiana Court of Appeals decided a case today entitled “Anonymous Physician v. Wininger”. (The physician is anonymous at this stage of litigation due to particulars about how the medical malpractice system works.)

The plaintiff had gone to the Anonymous Physician (AP) for problems with her foot. AP performed surgery on her second toe in early 2007. As of October 2007, the Plaintiff realized that her foot hurt worse than it had prior to the surgery. However, she did not go for a second opinion until April 2009. On her intake sheet, she listed the reason for her visit as “AP messed her foot up.” The second doctor said that the second toe on her foot was too short.

Plaintiff did not file her malpractice action until March 2011. The statute of limitations for a medical malpractice action is two years. (The abbreviation for statute of limitations, S.O.L., coincidentally is the same as that for Shit Outta Luck; which are, functionally, the same thing. If a would be litigant doesn’t file a claim within a certain amount of time, they are barred from doing so.)

The Plaintiff argued that the two years didn’t start to run until she got the second opinion and, therefore, knew that the pain in her foot was caused by the alleged negligence of AP. The court disagreed. If the patient is unaware of the negligence of the medical professional, the statute of limitations is tolled only “until the patient experiences symptoms that would cause a person of reasonable diligence to take action that would lead to the discovery of the malpractice.”

In this case, such symptoms were present not later than October of 2007 and, therefore, the action was barred.

As a side procedural note, it looks like the doctor got lucky. The trial court sided with the Plaintiff. However, it certified the case for an interlocutory appeal (an appeal that happens in the middle of the underlying case) and the Court of Appeals agreed to take it. Both of those things are discretionary. Either court could have declined to have the issue addressed by the Court of Appeals until after the case had concluded. If that had happened, before getting a shot at a decision on appeal, the parties would have had to incur a great deal of expense trying the malpractice case and would have faced a great deal of pressure to settle the case.


  1. John M says

    I don’t know if I would go so far as to say “lucky.” In my experience the odds are pretty good when seeking an interlocutory appeal on a threshold question such as a statute of limitation, choice of law, compliance with the Indiana Tort Claims Act, etc. I guess I should qualify it by saying that my odds have been good with the Court of Appeals on such issues. There is always the risk that the trial court will decline to certify, in which case it doesn’t matter how willing the COA might be.

    • says

      My luck hasn’t been very good. But I’ve only tried twice in the state courts — and both cases resulted in jury trials with defense verdicts for my clients.

      The first was a denial of summary judgment where liability was mostly premised on a theory of joint venture and an inadequately plead fraud claim. The trial court certified the order for interlocutory appeal but the Court of Appeals declined to take it.

      The second was a denial of summary judgment on an exculpatory clause in a contract. The trial court declined to certify the order.

      So, not quite the threshold questions you’re talking about, but still ended up costing my clients a fair amount of money in legal fees. Good for me, I suppose; but not for my clients.

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