Medical Negligence and Accrual of Latent Claims Clarified by NPO of COA - GMRIK v. Emberton
Claimant acquires hepatitis A and is treated, but does not learn of the source or potential cause of his hepatitis under years later when attorney pursuing hepatatis claims against Red Lobster restaurant contacts him. Suit is filed years after the diagnosis but within a year of learning the cause. The statute of limitations is one year. Did he meet it?
Court of Appeals held he missed the one-year statute and filed late in GMRIK INC F/K/A GENERAL MILLS RESTAURANTS, INC. V. EMBERTON (2005-CA-002355.pdf) in a decision authored by Judge Vanmeter reversing and remanding a decision from the Warren Circuit Court, Judge Wilson. Judges Paisley and Knopf concurred with Vanmeter in this decision.
The COA began by noting the legal history of the discovery rule, and that it applied to tort actions for injury from latent disease caused by exposure to a harmful substance. However, the COA agreed with the restaurant that hepatitis A cannot be considered a latent disease since Appellee knew of his disease only a month after eating at the restaurant. The COA also notes Appellee's duty to reasonably investigate the source once he was given the diagnosis, and found a complete failure to do so even when the health department was offering him aid in this regard. At worst, the COA held that suit should have been filed within 1 year of the date of diagnosis since the time begins to run once the occurrence of an injury is known even if the source is not yet known.
UPDATED:
On May 4, the COA issued a non published decision in the non-medical negligence which put the accrual of torts for statutes of limitation purposes under the microscope with a similar result to GMRIKL v. Emberton:
- TORTS: "Discovery" rule for bringing suit
2006-CA-001248
NOT PUBLISHED: DATE RENDERED: 5/4/2007Under this rule of law, Keith had one year from the time his injury (health/breathing problems) was or should have been discovered to bring suit against Epperson. While it may be true that Keith did file suit within one year of realizing that his health problems and the breathing of the fumes and soot allegedly caused by Epperson’s negligence may be related, that does not save the timeliness of the filing of his civil complaint. Keith had one year from the onset of his health problems to file the complaint.
