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In this case, Dr. Sherer had prescribed certain medications for one of his patients, a Ms. Zehr. Dr. Sherer saw Zehr several times per month, but never warned her that it was unsafe for her to drive due to her medical condition and the medications. The last of those visits occurred on November 21, 2006.

On November 27, 2006, Zehr was driving, lost consciousness due to her medical conditions and medication, and caused a head-on automobile collision with Ms. Manley. The Manleys settled with Zehr and filed a proposed complaint with the IDOI on November 25, 2008. Dr. Sherer moved for summary judgment based on both the statute of limitations and the merits. The trial court granted that motion.

On appeal, the Court concluded that the Manleys possessed sufficient information on November 27, 2006 to allow a reasonably diligent person to discover Sherer’s alleged malpractice, so they should have filed their proposed complaint before the statute ran on November 21, 2008. However, the Court then turned to whether the complaint was saved by the doctrine of continuing wrong. It concluded that this doctrine could apply in this situation.


The Court went on to address the merits of the Manleys' claims. It concluded that It was reasonably foreseeable that Zehr, with her medical conditions and under medications prescribed by Dr. Sherer, was at risk of losing consciousness while driving and posed a danger to third persons. This and other factors led the Court to find that Dr. Sherer owed the Manleys a duty to warn Zehr not to drive.

The interesting part of this decision is the Court's application of the continuing wrong doctrine. As the Court stated in its opinion, the statutory limitations period begins to run at the end of the continuing wrongful act. But the Court held that the wrong in this case may not have ended at the conclusion of Zehr's last visit with Dr. Sherer. Thus, the Court appears to encourage a more liberal application of this doctrine to save claims that would otherwise be time-barred.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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Pilot counters that a statute of limitation applicable to civil actions brought in a judicial proceeding is inapplicable to an administrative proceeding, and "[t]herefore, the Board does not have jurisdiction to interpret and apply [Indiana Code section 34-11-1-2] to provider fee claims." ... However, not being bound by the statute of limitation applicable to civil actions is quite a different proposition than being prohibited from relying on the statute where the Act itself is silent on the issue. Indeed the counter proposition is that no limitation period of any kind is applicable to provider claims. This is an untenable position. Rather, we agree that "the legislature enacted the general statutes of limitation for the very purpose of supplying a statute of limitation when one has not otherwise been provided by a more specific statutory scheme." Int'l Entm't, 940 N.E.2d at 383-84.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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A woman lived in a nursing home for more than 6 years when she was transferred from the nursing home to an emergency room on December 3, 2007. The woman died on December 14, 2007.

On December 14, 2009, the estate filed a proposed complaint against the nursing home with the IDOI, presenting a survivor action for negligence caused by medical malpractice. On December 17, 2009, the IDOI notified the estate that the nursing home was not a qualified health care provider under the Medical Malpractice Act due to its failure to provide proof of financial responsibility and to pay a required surcharge. Next, on December 18, 2009, the estate filed suit against the nursing home in the Marion Superior Court, again raising a survivor action for negligence caused by medical malpractice. The nursing home moved to dismiss based on the statute of limitations and the trial court granted that motion.

On appeal, the Court held that there was sufficient evidence to demonstrate a genuine issue of material fact regarding whether the woman was mentally incompetent at the time that she was allegedly harmed by the nursing home's negligence and was transferred
to the hospital for emergency treatment. This tolled the statute until the woman's death.

Then the Court turned its attention the the issue that caught my attention: whether the Journey's Account Statute forgave the mistaken filing with the IDOI.


I may have been too pessimistic when I said that the Journey's Account Statute would only apply in extraordinary circumstances. While the circumstances in which it will apply are limited, they do exist.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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Johnson received medical treatment at a hospital on December 22, 2006, and died the next day. Two years later, a proposed complaint was filed on her behalf with the IDOI. That proposed complaint was postmarked December 23, 2008, and the IDOI file-stamped it that date.

The defendants moved for summary judgment, arguing that the case was not brought within the applicable statute of limitations. In response, a legal assistant to the plaintiffs' attorney, submitted an affidavit, which averred that she deposited the proposed complaint at the post office on December 22, 2008. The trial court granted the motion.

On appeal, the Court disagreed. It found that the postmark date was not dispositive.


Thus, the question of whether the legal assistant deposited the proposed complaint at the post office on December 22, 2006, will be a jury question.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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In this case, Blinn sued an attorney and his law firm for legal malpractice. The attorney and firm were represented by different counsel, but both were insured by the same "wasting" malpractice insurance policy, whereby the proceeds of the policy dwindled as the cost of defending the action increased. Blinn was told that the attorney would agree to a policy-limits settlement, but that the firm would not. Therefore, Blinn's counsel proposed that he dismiss the firm without prejudice, with a conversion of the dismissal to one with prejudice if the settlement was obtained. A stipulation of dismissal was then filed (after the statute of limitations had run).

Settlement negotiations were unsuccessful, so Blinn filed a motion to reinstate the firm as a defendant. The firm opposed that motion and the trial court denied the motion. Blinn then filed a new complaint against the law firm, arguing that the Journey's Account Statute allowed him to do so. The firm moved to dismiss the case and the trial court dismissed that case. Blinn appealed.

Blinn continued to argue that the Journey's Account Statute preserved his claim on appeal. However, the Court did not agree. It specifically noted that Blinn failed to elicit an explicit promise from the firm not to contest reinstatement if settlement
negotiations with Beal failed. The firm's failure to tell Blinn that it would raise a statute of limitations defense if he followed his proposed course of action did not change this outcome because the firm owed Blinn no duty to consider whether Blinn would be able to re-file his complaint if mediation was unsuccessful.


Blinn's strategy in this case was not ill-advised, it was merely poorly executed. Counsel who wishes to employ the same type of strategy in a future case should get an express agreement from the defendant who will be dismissed without prejudice that they will not contest reinstatement should settlement (or whatever condition) not occur. This express agreement will offer greater protection than the Journey's Account Statute.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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In June 2005, an employee was injured on the job with the defendant. Indiana Spine performed medical services on the injured worker, but was not paid for the full amount that it charged. In April 2009, Indiana Spine brought an action seeking the entire amount it billed. The defendant moved to dismiss, citing the statute of limitations. The Worker's Compensation Board granted that motion and Indiana Spine appealed.

On appeal, the Court held that neither of the statutes of limitations in the Worker's Compensation Act applied to claims for reimbursement by a medical provider. Rather than tying a statute of limitations to the date of the injury (as the two statutes within the Worker's Compensation Act do), the Court held that the statute of limitations for claims like that asserted by Indiana Spine would seem to be more appropriately related to the date of service. Indiana Service argued that either I.C. § 34-11-2-7's six-year statute of limitation for actions on accounts or I.C. § 34-11-1-2's ten-year statute of limitation for actions that are not limited by any other statute should apply, but the Court did not decide which of these statutes was the proper one to apply, because Indiana Spine's complaint was timely under either statute.

This decision will be a boon to medical providers who feel that they have not been fully compensated in exchange for the services that they provided to injured employees under the worker's compensation system. I expect that someone will have a lawsuit that clarifies whether the 6- or 10-year statute of limitations applies soon.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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A father and mother were divorced in 1971. At the time of the divorce, they had a son and daughter, so the father was ordered to pay child support. In July 1989, the father was held in contempt and ordered to pay a certain amount in child support arrearages. The father died in May 2009 and the mother filed a claim against his estate in September 2009, seeking the money owed pursuant to the July 1989 order. The trial court entered an order awarding the amount of the judgment to the mother and the father appealed.

On appeal, the father argued that the mother's claim was barred by the 10-year statute of limitations on enforcing child support obligations and the 20-year statute of limitations on enforcing a judgment. The Court held that the 10-year statute did not apply because the child support obligation had already been reduced to judgment. It then followed a prior case that held the twenty-year statute is merely a rule of evidence that creates a rebuttable presumption.


Because the mother plead nonpayment and the father did not plead payment, the mother satisfied her burden of proof and was entitled to enforce the judgment.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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In this case, the plaintiff filed his lawsuit via certified mail pursuant to Trial Rule 5(F) about 3 weeks before the statute of limitations expired. However, plaintiff's counsel neglected to file his appearance with the complaint, filing fee, and summons. It was not filed until the day after the statute of limitations ran. The Defendant moved for judgment on the pleadings, arguing that the case did not commence until the appearance was filed. The trial court granted this motion.

On appeal, the Court looked to Trial Rule 3 to determine when the action was commenced. That Rule only refers to the complaint, filing fee, and summons. Therefore, the Court concluded that a party did not need to comply with Rule 3.1 in order to commence an action for the purposes of the statute of limitations.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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Download a copy of this article here