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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA woman’s medical malpractice claim over a failed femur rod was filed too late and should not have been allowed to proceed, the Indiana Court of Appeals ruled Friday, reversing a northern Indiana trial court.
Carol Foreman filed a proposed medical malpractice claim in Fulton Circuit Court on Jan. 19, 2018, nearly two years and two months after doctors repaired her hip fracture by inserting a femoral rod into her femur. “Post-surgery, Foreman returned for follow-up visits, and Anonymous Doctor A ordered x-rays of Foreman’s femur. The x-rays did not show any fracture of the femoral rod. However, on January 22, 2016, Foreman felt a sudden pain in her groin area and was unable to walk. She went to Anonymous Hospital B for an x-ray that revealed the femoral rod had fractured. On January 23, 2016, surgeons in Indianapolis performed revision surgery on Foreman.”
Foreman continued to see doctor A after the revision surgery, and she also filed a claim with the manufacturer of the femoral rod seeking compensation for the failure and revision surgery, but her claim was denied.
The providers, meanwhile, moved for summary judgment, which the trial court denied last September and the COA reversed Friday in Anonymous Doctor A, Anonymous Hospital B, and Anonymous Medical Facility C v. Carol Foreman,18A-CT-2785.
“The occurrence date of Foreman’s injury is November 25, 2015, because that is the day Doctor A is alleged to have negligently implanted the femoral rod. Foreman reasonably should have suspected negligence on January 22, 2016, when her femoral rod fractured, because femoral rods are not supposed to fracture. In fact, Foreman suspected the manufacturer of the femoral rod was negligent and sent a letter to the manufacturer. The manufacturer wrote back in September 2016 denying liability, and Foreman apparently took no additional action until filing the instant complaint on January 19, 2018,” Judge Melissa May wrote for the panel.
“Foreman states in her affidavit that she ‘never had reason to believe that [she] had a claim for medical malpractice until [her] attorneys filed a medical malpractice complaint on January 19, 2018,’” May wrote. “This conclusory statement does not create a genuine issue of material fact. Someone must suspect malpractice in order to draft a complaint alleging malpractice. Foreman fails to put forth any evidence about what prompted her to file suit. If the failure of the femoral rod prompted Foreman to suspect malpractice, then she discovered the potential malpractice twenty-two months before the limitation period expired. If the letter from the manufacturer prompted Foreman to suspect malpractice, then she discovered it fourteen months before the limitations period expired. Either way, Foreman learned of the suit sufficiently in advance of the limitations expiration date to file suit within two years of the occurrence date.”
“Foreman had ample time to file suit within two years of the date of the alleged malpractice, but she failed to do so, and her claim cannot be saved by the continuing wrong doctrine or fraudulent concealment,” the panel concluded. “Accordingly, we must reverse the trial court and remand with instructions for the trial court to enter summary judgment on behalf of Medical Providers.”
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