Recent Developments in Medical Malpractice

Abstract

University (Ohio); J.D., Honors Program, 2006, Valparaiso University School of Law. 1. IND. CODE §§ 34-18-1-1 to -18-2 (2008). 2. Id. § 34-18-7-1. 3. See Herron v. Anigbo, 897 N.E.2d 444, 449 (Ind. 2008), reh’g denied, No. 4S503-0811CV-594, 2009 Ind. LEXIS 119 (Ind. Feb. 10, 2009). 4. The court defined the “trigger date” before the Survey Period. See id. at 454. [T]he ultimate question becomes the time at which a patient “either (1) knows of the malpractice and resulting injury or (2) learns of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury.” Although we have sometimes referred to the critical date as the “discovery date,” we think a more accurate term is “trigger date,” because actual or constructive discovery of the malpractice often postdates the time when these facts are known. Moreover, the trigger date, unlike a typical discovery date applicable to an accrual of a claim, in most circumstances does not start a fixed limitations period. Rather, it is the date on which a fixed deadline becomes activated. Id. at 448-49 (footnote omitted) (quoting Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005)). RECENT DEVELOPMENTS IN MEDICAL MALPRACTICE