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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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