Developments in Indiana Law

By: Jeb A. Crandall
Estate of Lisa David v. William Kleckner, M.D.
Indiana Supreme Court - May 2014
Key issue: If the discovery of malpractice occurs before the statutory two-year deadline to file a claim, but there is insufficient time to file, a plaintiff is allowed to initiate a malpractice claim within a "reasonable time" despite the expiration of the statute of limitations.

Dr. Kleckner was Lisa David's physician for approximately ten years until the time of her death on March 25, 2011. During her annual physical on November 24, 2008, Dr. Kleckner conducted a routine pap smear, the results of which indicated abnormalities. A second pap smear was conducted two months later, on January 28, 2009, which also detected abnormalities. The pathologist reviewing the second pap smear submitted a report to Dr. Kleckner stating "[e]ndocervical and endometrial biopsy is recommended if clinically indicated." On February 27, 2009, Dr. Kleckner performed an endometrial biopsy, but not an endocervical biopsy. The performed endometrial biopsy was negative for signs of cancer or other medical conditions. At Dr. Kleckner's direction, his medical assistant contacted Lisa on March 13, 2009, and told her, among other things, "All okay," "Looks fine," and "Came back clear." No endocervical biopsy was ever performed, however, and Lisa was never told of the pathologist's recommendations regarding an endocervical biopsy. In the next five months, Lisa began to experience genital pain, discomfort, and bleeding. She saw a specialist, Dr. Bean, on September 1, 2009. Dr. Bean examined Lisa and detected a mass on Lisa's cervix, and on September 3, 2009, Dr. Bean's office informed Lisa that the mass was a cancerous tumor. Shortly after the discovery of her cervical tumor, Lisa began treatment for her cancer. Unfortunately, the treatment was not successful.

It was in mid to late February, 2011, that Lisa's husband, Larry David, became suspicious of why Dr. Kleckner hadn't found any evidence of cancer or a tumor when he had last seen Lisa. He consulted an attorney who provided medical information releases that Lisa signed and which enabled Larry on February 25, 2011, to obtain Dr. Kleckner's medical records, which he gave to the attorney for review by medical experts. It was not until after Lisa's death on March 25, 2011, that Larry learned that Dr. Kleckner had not performed the recommended endocervical biopsy. On July 1, 2011, three months and seven days after Lisa's death, the estate commenced this action by filing its proposed complaint for damages with the Department of Insurance. The complaint alleged that Dr. Kleckner negligently failed to perform the recommended endocervical biopsy and that this mistake led to a late diagnosis of Lisa's cancer, resulting in a diminution in her chances of receiving effective treatment and ultimately her death. The proposed complaint was filed more than 28 months after Dr. Kleckner allegedly failed to perform the endocervical biopsy.

Dr. Kleckner moved for summary judgment on the basis of the statute of limitations as the estate's proposed complaint was filed more than two years beyond the alleged malpractice. The trial court granted Dr. Kleckner's motion and the Court of Appeals upheld the decision.

The Indiana Supreme Court reversed the trial court's decision and found that although the alleged malpractice (failure to perform an endocervical biopsy) occurred on February 27, 2009, the evidentiary facts, particularly Dr. Kleckner's assurances in early September, 2009-that likely would have minimized the plaintiff's suspicion and inquiry-support a reasonable inference that mid to late February, 2011, when Larry David first became suspicious of the possibility of malpractice, was the point when Lisa or Larry David either knew of the alleged malpractice and resulting injury, or learned of facts that, in the exercise of reasonable diligence, should have led to the discovery of the malpractice and the resulting injury. There are no undisputed facts that establish an earlier discovery or trigger date. Depending on the precise date in the period from "mid to late February" when Larry's suspicions were aroused, such discovery date may have been less than two years after the date of the alleged malpractice, February 27, 2009. In such case, Lisa and David were obligated to initiate the malpractice action within a reasonable time, which the Court found that Larry did by promptly consulting an attorney after his suspicions arose, obtaining medical information release forms, using those forms to obtain Lisa's medical records, and then returning the medical records to his attorney for evaluation by medical experts. The Court found that it was not necessarily an unreasonable delay for this action to be commenced on July 1, 2011, and that the plaintiff may be found to have filed within a reasonable time if the trigger date occurred within the statutory window.

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