Last Reasonable Opportunity to Diagnose and Treat Not Last In-Person Visit Establishes Date on Which Statute of Limitations Begins to Run in Indiana Medical Malpractice Claims

The Indiana Court of Appeals recently issued an opinion in Strickholm v. Anonymous Nurse Practitioner reversing a trial court’s grant of summary judgment based upon the statute of limitations. Under the Indiana Medical Malpractice Act (MMA), a claim for medical malpractice 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) year after the date of the alleged act, omission, or neglect. Health care is defined by the MMA as an act or treatment performed or furnished, or that should have been performed or furnished, by a healthcare provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.

On October 29, 2015, the patient, Peter Strickholm, established primary care with Anonymous Nurse Practitioner (Anonymous NP). Anonymous NP thereafter saw Peter on December 1, 2015, at which time she prescribed a blood pressure medication to manage his high blood pressure and recommended that he return for a blood pressure check the following week. When Peter returned on December 8, 2015, a blood pressure check was performed by a licensed practical nurse (LPN). On December 11, 2015, the Anonymous NP electronically reviewed and approved the LPN’s report, but the Anonymous NP did not recommend any further testing or treatment despite the results. On December 15, 2015, Peter went to the hospital and was diagnosed with low sodium. He then suffered a cardiopulmonary arrest and hypoxic event causing a permanent brain injury.

Peter, and his parents, as his guardians, filed a proposed medical malpractice complaint on December 4, 2017. Anonymous NP filed a motion for preliminary determination of law and motion for summary judgment on February 1, 2018 claiming that the complaint was barred by the two (2) year statute of limitations because the last day Anonymous NP provided health care to Peter was on December 1, 2015 with the complaint having been filed more than two (2) years after that date. The trial court granted summary judgment in favor of Anonymous NP holding that the continuing-wrong doctrine (which provides that the statute of limitations can be extended when an entire course of conduct of a continuous nature combines to produce an injury) did not apply to Anonymous NP’s single act of prescribing the medication on December 1, 2015, Anonymous NP did not provide health care on December 8, 2015 because she did not see Peter on that date, and Anonymous NP’s review and approval of the LPN’s report on December 11, 2015, did not constitute the provision of health care to a patient. The plaintiff appealed the trial court’s decision.

The Court of Appeals found there existed a genuine issue of material fact as to whether Anonymous NP provided health care to Peter on or after December 4, 2015, and whether the continuing wrong doctrine applied to extend the statute of limitations. The Court reasoned that Anonymous NP’s last opportunity to evaluate Peter’s test results and order further testing or treatment was on December 11, 2015, when she reviewed and approved the LPN’s report on the blood pressure check that was performed on December 8, 2015. The Court distinguished two prior cases, Havens v. Ritchey and Szamocki v. Anonymous Dr. & Anonymous Grp., which Anonymous NP cited in support of her position that the date of a health care provider’s last face-to-face encounter with a patient is the date on which the statute of limitations begins to run in nonfeasance claims where the allegation is a failure to perform a particular act. Rather, the Court reasoned that the statute of limitations begins to run on the date when the health care provider had the last reasonable opportunity to diagnose or treat a condition. Here, the Court held there was a genuine issue of material fact as to whether Anonymous NP provided health care to Peter on December 11, 2015, and consequently, reversed the trial court’s grant of summary judgment for Anonymous NP.

You can read the full Indiana Court of Appeals’ opinion here. Indiana lawyers face many obstacles in seeking legal remedies for their clients affected by medical malpractice, many of which are due in large part to the numerous protections provided to healthcare providers under the MMA. If you or a loved one have suffered harm as a result of medical malpractice, contact the experienced medical malpractice attorneys at Barsumian Armiger for a free, no-obligation consultation.


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