The Indiana Court of Appeals issued an interesting decision on its last day of business in 2011 dealing with the concept of continuing wrong in
, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 59A01-1104-PL-190. The Court's decision emphasizes how the application of this doctrine is a question of fact for the jury.
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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.
In this case, Sherer saw Zehr several times per month in the months leading up to the accident. At an appointment on August 9, 2006, Sherer advised Zehr to "watch" her driving, but he did not advise her during that appointment or any subsequent appointment that it was absolutely unsafe for her to drive. Thus, although Sherer was aware of Zehr's inability to drive safely, he continuously failed to advise her to avoid driving. There is a dispute of fact as to whether Sherer's failure to warn was a continuing wrong, at least until the accident occurred on November 27, 2006. Under these circumstances, as in
Garneau, the doctrine of continuing wrong, if applicable, would toll the statute of limitations until at least November 27, 2008. Under those circumstances, the Manleys' November 25, 2008 proposed complaint would be timely filed. We conclude that Sherer is not entitled to summary judgment based on the statute of limitations. The trier of fact must determine whether the doctrine of continuing wrong applies.
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.
