The Journey’s Account Statute Strikes Again

By: Carol Dillon
BleekeDillonCrandall Attorneys

In another recent opinion from the Indiana Court of Appeals, the Journey’s Account Statute (“JAS”) has been used effectively to save an otherwise untimely medical malpractice claim. In Northlake Nursing and Rehabilitation Center v. Estate of Cocteus Mason, decided November 15, 2011 by the Indiana Court of Appeals, the Court held that the Estate’s medical malpractice claim was not barred by the statute of limitations even though it was filed over two years after the date of the malpractice. Cocteus Mason died at the nursing home in October, 2008. In February. 2010, his Estate filed a Complaint in Lake County Court alleging wrongful death. The nursing home moved to dismiss because it was a “qualified” health care provider under the Indiana Medical Malpractice Act and the Plaintiff had not first presented the case to a medical review panel. In July, 2010, the trial court granted the nursing home’s Motion to Dismiss. In January, 2011, over two years from the date of Mr. Mason’s death, the Estate filed a Proposed Complaint with the Department of Insurance. The nursing home filed a Motion for Preliminary Determination of Law with the trial court, moving to dismiss because the statute of limitations had passed. The Estate responded that the action was saved by the Journey’s Account Statute, which they claimed extended the statute of limitations because of the earlier-filed case in Lake County. The trial court agreed and the nursing home appealed.

The nursing home argued that the original action failed because of negligence in the prosecution of the action because the Estate failed to first file in the Department of Insurance against a qualified provider. Negligence in the prosecution of the action is an exception to the savings clause of the JAS. The Court of Appeals held that the nursing home failed to demonstrate negligence in the prosecution of the action and the Estate had three years from the date its original complaint was dismissed in state court to file in the Department of Insurance. This is now the second case in the last several months from the Court of Appeals that relieves the plaintiff from the duty to do some due diligence before filing a complaint to determine whether or not the complaint belongs in the Department of Insurance or in state court before the statute of limitations expires.