On August 10, 2012, the Court of Appeals of Indiana filed its opinion in a case in which it allowed a medical malpractice case to proceed despite the medical malpractice having occurred 35 years earlier. On August 4, 2009, the medical malpractice plaintiff filed her claim that alleged that her family physician who delivered her on April 1, 1974 performed a blood test for phenylketonuria (“PKU”) that revealed that she had PKU but that the doctor failed to tell her parents the result of the test.
What Is PKU?
As referenced in the Indiana Appeals Court opinion:
“Amino acids are the building blocks for body proteins, and they are converted into different forms by enzymes. Classic PKU is an inherited condition in which a person cannot breakdown the amino acid, phenylalanine, due to a lack in a specific enzyme, which then leads to a build-up in the body. The excess phenylalanine is toxic to the central nervous system and can cause mental retardation, increased muscle tone, microcephaly, and certain physical features. Treatment for PKU is a special diet that restricts the dietary intake of phenylalanine, and must be followed to prevent central nervous system damage. . . .
Women affected by PKU must pay special attention to their diet if they wish to become pregnant, since high levels of phenylalanine in the uterine environment can cause severe malformation and mental retardation in the child. However, women who maintain an appropriate diet can have normal, healthy children.”
As a result of not being told that their child had PKU, the parents of the medical malpractice plaintiff did not place her on a special, low-phenylalanine diet. Although the plaintiff exhibited developmental delays and exhibited other symptoms that were consistent with her having untreated PKU, her doctors failed to diagnose her with PKU. As an adult, the plaintiff’s IQ is 74 (“mild to borderline mental retardation . . . .”), she has been unable to hold a job, and she receives public assistance.
During November 2005, the plaintiff gave birth to a child with microcephaly (a small head) and dysmorphic facial features and subsequently had developmental delays and other issues that were not initially diagnosed as caused by PKU.
The plaintiff’s PKU was not diagnosed until August 6, 2007, after the elevated phenylalanine level was confirmed. She was advised of the diagnosis the next day. It was not until September 18, 2007 that the plaintiff’s parents obtained her birth records and discovered the 1974 test result confirming the plaintiff’s PKU that had never been told to them.
The doctor who delivered the plaintiff died in 1981. The doctor’s Estate filed a motion for summary judgment arguing that the plaintiff’s medical malpractice case was filed too late, which the trial court judge denied. The Estate appealed the court’s denial of its motion for summary judgment.
The Court of Appeals of Indiana’s opinion affirming the denial of summary judgment referenced Indiana Code Section 34-18-7-1(b) that states in part that a medical malpractice claim “may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years of the date of the alleged act, omission, or neglect . . . .,” meaning that “an action for medical malpractice generally must be filed within two years from the date the alleged negligent act occurred rather than from the date it was discovered.”
The Court of Appeals of Indiana (“Appeals Court”) noted that “the statute violates Article 1, Section 23 and Article 1, Section 12 of the Indiana Constitution in cases where a plaintiff, within the two-year period, does not know, or in the exercise of reasonable diligence could not have discovered, that he or she had sustained an injury as a result of malpractice…[I]n such a case the statute of limitations would impose an impossible condition on plaintiff’s access to courts and ability to pursue an otherwise valid tort claim…If an act of malpractice and resulting injury cannot be discovered during the limitations period given the nature of the asserted malpractice and the medical condition, the occurrence-based statute of limitations cannot be enforced ‘without doing violence to the Indiana Constitution.'”
The Appeals Court stated “When considering whether the Act’s statute of limitations may constitutionally bar a malpractice claim, a court must first ‘determine the date the alleged malpractice occurred and determine the discovery date—the date when the claimant discovered the alleged malpractice and resulting injury, or possessed enough information that would have led a reasonably diligent person to make such discovery.’…If the discovery date is more than two years beyond the date the malpractice occurred, the claimant has two years after discovery within which to initiate a malpractice action…If, however, discovery is made within the two-year period after the occurrence of malpractice, a suit must be filed within the limitations period, unless it is not reasonably possible to do so…In general, ‘a plaintiff’s lay suspicion that there may have been malpractice is not sufficient to trigger the two-year period’…On the other hand, a plaintiff need not definitely know or be informed that malpractice caused his or her injury to trigger the beginning of the statutory time period…In the case of a missed disease diagnosis, the Act’s statutory period ‘does not begin to run until either a correct diagnosis is made or the patient has sufficient facts to make it possible to discover the alleged injury.'”
The Appeals Court held “Regardless of the type of disease, injury, or illness at issue, the question is the same as far as determining a “trigger date” for the statutory period: when did the claimant possess enough information that, in the exercise of reasonable diligence, should have led to the discovery of the alleged malpractice and resulting injury?”
The Appeals Court held in the case it was deciding that “At the very least, there is a question of fact in this case as to whether the trigger date for the statute of limitations was August 2, August 7, or September 18, 2007, or some other date and, therefore, whether [the] proposed complaint filed on August 4, 2009, was timely.”
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