Scott Roberts for www.theindianalawyer.com
The Indiana Court of Appeals ruled a medical malpractice lawsuit filed by minor children can continue after it found the suit was not untimely filed. The children were in the correct age range to trigger an exception in the Medical Malpractice Act.
Traci Leach died from lung cancer after a radiologist failed to diagnose a tumor on a CT scan. Multiple medical malpractice suits followed, but the hospital the doctor worked for was granted summary judgment in all but the children’s cases because they were untimely filed. Leach had three children with Kenneth Lockridge, Lily Lockridge, Rose Lockridge and Kenneth Lockridge Jr., and two other children from another relationship. The Lockridges and the two other children filed separate suits.
The Lockridges did not have their case dismissed because they were under six years old at the time of the alleged negligence and under eight years old before they field suit, which is allowed by the Medical Malpractice Act. The hospital filed an interlocutory appeal.
The CT scan was performed July 6, 2011, and this is the date when the alleged negligence occurred. The parties in the case didn’t file their complaint until Aug. 27, 2014, and according to the Medical Malpractice Act, lawsuits must be filed within two years of the malpractice taking place. The judges decided the trigger date is Aug. 30, 2012, when Traci learned she had cancer.
The COA held the children’s suit can take place because of the MMA exception on minor children. Judge John Baker wrote the Act does not qualify whether suits filed by minor children have to be injured by alleged negligence or can be a non-injured party bringing a derivative claim, and therefore both are acceptable under the Act.
“Our legislature could have drafted the definition of patients to exclude derivative claimants, but it elected not to do so. We are bound by the language it selected, which clearly includes derivative claimants as patients,†Baker wrote.
He also wrote that just because the rest of the suit was denied doesn’t mean the children’s suit can continue because to rule otherwise would “make an end-run around the purposes of the MMA.â€
The case is Anonymous M.D. and Anonymous Hospital v. Kenneth Lockridge, on behalf of Lily Lockridge, Rose Lockridge, and Kenneth Lockridge, Jr., Minors, 39A01-1509-CT-149
