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Suit Filed 28 Months After Failure to Biopsy Not Barred By 2-Year Limitations


During a woman’s annual physical her family physician for approximately ten years conducted a routine pap smear, the results of which indicated abnormalities. A second pap smear was conducted two months later, which also detected abnormalities. The pathologist reviewing the second pap smear submitted a report to the family physician recommending an endocervical and endometrial biopsy if clinically indicated. A month after the second pap smear, the family physician performed an endometrial biopsy, but not an endocervical biopsy. The performed endometrial biopsy was negative for signs of cancer or other medical conditions. At the family physician's direction, his medical assistant contacted the woman two weeks after the endometrial biopsy and told her, among other things, “All okay,” “Looks fine,” and “Came back clear.” No endocervical biopsy was ever performed, however, and she was never told of the pathologist's recommendations regarding an endocervical biopsy.

 

In the next five months, the woman began to experience genital pain, discomfort, and bleeding. She saw a specialist in obstetrics and gynecology just less than six months after the report from the medical assistant. The OB/GYN examined her and detected a mass on her cervix. Two days after the exam, the OB/GYN's office informed her that the mass was a cancerous tumor. Approximately one week later, the family physician assured the woman that no tumor was present when he had examined her and performed the endometrial biopsy. Shortly after the discovery of her cervical tumor, the woman began treatment for her cancer. The treatment was not successful, and she died 18 months after she the mass was detected.

 

About a month before she died, her husband became suspicious of why the family physician had not found any evidence of cancer or a tumor when he had last seen her. He consulted an attorney who provided medical information releases that the woman signed and which enabled her husband to obtain the family physician's medical records, which he gave to the attorney for review by medical experts.

 

Three months and seven days after her death, the woman’s estate commenced this action by filing its proposed complaint for damages with the Department of Insurance. The complaint alleged that the family physician negligently failed to perform the recommended endocervical biopsy and that this mistake led to a late diagnosis of her cancer, resulting in a diminution in her chances of receiving effective treatment and ultimately her death. The proposed complaint was filed more than 28 months after the family physician allegedly failed to perform the endocervical biopsy.

 

The family physician filed a motion for summary judgment based on the statute of limitations. The Marion County Superior Court granted summary judgment in favor of the family physician. The Court of Appeals affirmed.

 

The Supreme Court of Indiana reversed. The court held that a genuine issue of material fact existed as to when the woman reasonably should have discovered whether the family physician's failure to perform an endocervical biopsy caused or inhibited the timely treatment of her cervical cancer, precluding summary judgment, and a lapse of less than five months between the date on which the woman’s husband became suspicious that the family physician had committed medical malpractice and the date on which the estate filed the proposed complaint was not necessarily an unreasonable delay.

 

A genuine issue of material fact existed as to when the woman reasonably should have discovered whether the family physician's failure to perform an endocervical biopsy caused or inhibited the timely treatment of her cervical cancer, precluding summary judgment. In determining whether a medical malpractice claim has been commenced within the medical malpractice statute of limitations, the discovery or trigger date is the point when a claimant either knows of the malpractice and resulting injury, or learns of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury. For purposes of the medical malpractice statute of limitations, a claimant's learning of the resulting disease or the onset of resulting symptoms may or may not constitute the discovery or trigger date. Where the plaintiff knows of an illness or injury, but is assured by professionals that it is due to some cause other than malpractice, this fact can extend the period for reasonable discovery. The family physician’s assurance that there was no mass when he examined the woman must be considered in evaluating when she or her husband knew facts that would have reasonably led them, in the exercise of reasonable diligence, to discover the alleged malpractice. While it was clear when the woman became aware of her cervical cancer, it was a disputed fact when she should have, in the exercise of reasonable diligence, discovered whether the family physician's failure to perform the endocervical biopsy caused or inhibited timely treatment. The court found that the evidentiary facts, particularly the family physician's assurances, supported a reasonable inference that when the husband first became suspicious of the possibility of malpractice, was the point when the wife or the husband either knew of the alleged malpractice and resulting injury, or learned of facts that, in the exercise of reasonable diligence, should have led to the discovery of the malpractice and the resulting injury. There were no undisputed facts that established an earlier discovery or trigger date.

 

A lapse of less than five months between the date on which the husband became suspicious that the family physician had committed medical malpractice and the date on which the estate filed the proposed complaint was not necessarily unreasonable delay. If the date on which a claimant either knew of medical malpractice and resulting injury, or learned of facts that would have led a person of reasonable diligence to have discovered the malpractice and resulting injury, was less than two years after the occurrence of the malpractice, the statute of limitations barred the claim unless it was not reasonably possible for the claimant to present the claim in the remaining time, in which case the claimant must do so within a reasonable time after the discovery or trigger date. Depending on the precise date when the husband's suspicions were aroused, the discovery date may have been less than two years after the date of the alleged malpractice. In such case, the wife or estate were obligated to initiate the malpractice action within a reasonable time. The court found that the husband promptly consulted an attorney after his suspicions arose, obtained medical information release forms, used those forms to obtain the wife's medical records, and then returned the medical records to his attorney for evaluation by medical experts. The court determined that it was not necessarily an unreasonable delay for this action to be commenced within five months of the discovery date, and that the estate may be found to have filed within a reasonable time if the trigger date occurred within the statutory window.

 

The Supreme Court of Indiana reversed the judgment of the trial court granting the family physician's motion for summary judgment on statute of limitations grounds.

 

See: David v. Kleckner, 2014 WL 2210474 (Ind., May 28, 2014) (not designated for publication).

 

See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis

 

 

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