A claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor's eighth birthday to file.
Halbe v. Weinberg, 717 N.E.2d 876, 881-882 (Ind. 1999) , amended and reh'g denied, 2000 Ind. LEXIS 2, rev'g 646 N.E.2d 995 (Ind. Ct. App. 1995). (Court reversed a ruling that plaintiff's breast implant claim was time-barred, holding that the statute of limitations did not begin to run until the plaintiff learned that her implants contained silicone.)
Martin v. Richey, 711 N.E.2d 1273, 1278 (Ind. 1999). (Two-year statute of limitations is unconstitutional as applied to plaintiffs who are unable to discover their medical malpractice claims before expiration of the two-year period; plaintiff was unable to discover that she had breast cancer until after expiration of two-year occurrence-based statute.)
Van Dusen v. Stotts, 712 N.E.2d 491, 497 (Ind. 1999). (Two-year statute of limitations was unconstitutional when applied to plaintiff, who was unaware that he had cancer that had spread from his prostate to his lymph nodes, until more than two years following the defendant's alleged negligent failure to diagnose.)
Whitaker v. St. Joseph's Hosp., 415 N.E.2d 737 (Ind. Ct. App. 1981). (The Indiana Medical Malpractice Act requires the plaintiffs to present the complaint to a medical review panel before instituting the malpractice action, and noncompliance warrants summary judgment for the defendant, despite evidence that the plaintiff's attorney was mistakenly informed by the Indiana Department of Insurance that the defendant was not a qualified health care provider, thereby causing the plaintiff to file the action without going first to the review panel.)
Walters v. Rinker, 520 N.E.2d 468 (Ind. Ct. App. 1988). (A pathologist allegedly misdiagnosed a tumor removed from a patient. Even though there was no contact between the parties, a physician-patient relationship was demonstrated which imposed a duty to exercise due care under the circumstances. The patient's family physician removed the tumor, sent it to the pathologist for examination, and received the report. The statute of limitations on such a claim runs from the date of the alleged negligence and does not benefit from the extension of the period under a continuing wrong theory, which supposes that the failure to correct the misdiagnosis was a continuing wrong which resulted in continuing harm.)
Alwood v. Davis, 411 N.E.2d 759 (Ind. Ct. App. 1980). (The court affirmed the summary judgment against the plaintiff on the basis of the statute of limitations because the Indiana statute "is an occurrence rule, not a discovery rule." The period begins to run from the date of the negligence. Nevertheless, the opinion left open the question whether the court might decide that the statute is unconstitutional (in this case the question of constitutionality was not raised), stating "we have not ruled out the possibility of deciding in a future case that this occurrence rule must be applied as though it was a discovery rule due to the questionable constitutionality of the occurrence rule.")
Jastremski v. United States, 737 F.2d 666 (7th Cir. 1984) , applying federal law. (The evidence was held to support the finding that the parents of a child who sustained brain damage during delivery did not discover the child's injury until cerebral palsy was diagnosed four years later. The action was begun within two years of discovery. The defendant had contended that the parents knew of the injury earlier since the father was a physician and knew that the child suffered seizures soon after birth.)
Payton v. Benson, 717 F. Supp. 1346 (S.D. Ind. 1989) , applying Indiana law. (A medical malpractice action must be brought within the two-year statute of limitations or within 90 days after receipt of the medical review board ruling, whichever is later. As the plaintiff did not meet these requirements, the court granted summary judgment for the defendant surgeon.)
Cacdac v. Hiland, 561 N.E.2d 758 (Ind. 1990). (Equitable estoppel is a bar to the statute of limitations defense in a medical malpractice action only if the plaintiff has been diligent by filing the action within a reasonable time after discovery of the alleged malpractice. Where the patient delayed filing the action 22 months after concluding that her surgery was unnecessary, the delay was unreasonable and the action untimely.)
Hospital Corp. of Am. v. Hiland, 547 N.E.2d 869 (Ind. Ct. App. 1989), aff'd 561 N.E.2d 758 (Ind. 1990). (Two of the plaintiffs (Hiland and Pemberton) sued the hospital, and Hiland also sued the physician for performing unnecessary disc surgery. Hiland relied on the fraudulent concealment doctrine, which allows a plaintiff a reasonable time to file a claim after discovery of the alleged malpractice. As to Hiland's claim against the physician, the court held that waiting 22 months after discovery did not constitute due diligence. As to Hiland's and Pemberton's claims against the hospital, the court held the physician's fraudulent concealment could not be imputed to the hospital under the doctrine of apparent authority. In addition, the doctrines of constructive fraudulent concealment and continuing wrong were held inapplicable.)
Spoljaric v. Pangan, 466 N.E.2d 37 (Ind. Ct. App. 1984). (To toll the statute of limitations on the ground of fraudulent concealment, the plaintiff must show facts, other than his subjective assertion that the physician-patient relationship still existed beyond the time of final consultation. In addition, the plaintiff failed to establish that the physician had actual knowledge that his attempted sterilization procedure had failed.)
Wojcik v. Almase, 451 N.E.2d 336 (Ind. Ct. App. 1983). (Constructive fraud tolling the statute of limitations may exist where a physician represents that a certain condition is expected to continue into the future, or where he prescribes treatment to be followed for a period of time. The mere dismissal of the patient from the hospital, however, does not amount to representation that would cause a patient to ignore his suspicion of malpractice. In this case, a piece of catheter remained in the patient's body.)