January 31, 2018

The Discovery Rule and Medical Malpractice; Zelman v. Central Indiana Orthopedics

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The discovery rule requires that a patient exercise reasonable diligence in learning about her claim, or risk having her claim barred by the statute of limitations. This case explores what a patient must do in order to exercise that reasonable diligence.

In March 2010, Zelman began experiencing back pain for no known reason. She sought treatment and was diagnosed with a synovial cyst in her lumbar spine. Zelman consulted with Dr. Tekula at CIO in Anderson, who recommended that she undergo a procedure to remove the cyst and a spinal fusion surgery. Zelman agreed to proceed and Dr. Tekula performed the procedure in May 2010.

Before Zelman was released from the hospital, Dr. Tekula informed her that something unusual had happened during the surgery—Dr. Tekula found a second cyst and an even greater instability at another level. Therefore, Dr. Tekula went ahead and performed a second spinal fusion. Dr. Tekula also told Zelman that her “spinal lamina … was exceptionally long,” so Dr. Tekula “cut the lamina down.” But Dr. Tekula also admitted that there was no medical reason to cut the lamina.

Following the surgery, Zelman felt new, intense pain in the region of her surgery, which radiated downward into her buttocks and hips. She asked Dr. Tekula about this, and was assured that “everything went great and everything was great and everything was fine.” Dr. Tekula said this again after an October 2010 MRI. Zelman was last treated by Dr. Tekula in February 2011.

At some point, Zelman saw a neurologist, Dr. Vogel, who said that she believed Zelman was suffering from nerve damage. Dr. Vogel referred Zelman to two specialists, Dr. Mobasser and Dr. Coscia. Dr. Mobasser told Zelman that he did not know what was wrong, but that he was “fairly certain” that any surgery would be “brutal,” and that he did not want to perform that surgery. Dr. Coscia agreed to perform another surgery, and did so in 2014. In June 2014, Dr. Coscia told Zelman that he “had found that there was no fusion, that there were no pedicle screws, that that was extremely unusual, because they’ve known for more than two decades that you have to use pedicle screws or you don’t get a fusion.”

Zelman filed a proposed complaint with the IDOI against Dr. Tekula and CIO in January 2015. Dr. Tekula and CIO moved for summary judgment, arguing that the claims were untimely under the statute of limitations. The trial court granted that motion, finding that Zelman should have discovered the issue after she stopped seeing Dr. Tekula, and Zelman appealed.

On appeal, the Court began by emphasizing that a medical malpractice claim accrues when the plaintiff “either knows of the malpractice and resulting injury, or learns of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury.” Importantly, a plaintiff who relies on a medical professional’s words that an illness or injury is due to a cause other than malpractice may extend this accrual date.

In this case, Zelman’s claim arose from the May 2010 surgery. But Dr. Tekula assured her that everything “went great” and was “fine.” Despite these assurances, “Zelman actively pursued an explanation for the pain and consulted several medical professionals,” one of which described the surgery required to diagnose the injury as “brutal.” The Court found that Zelman was not required to undergo this surgery at the earliest opportunity in order to avoid the statute of limitations.

Given that the second surgery was required to discover the malpractice, and given that it was described as brutal with no guarantee of success, we cannot say as a matter of law that Zelman was not reasonably diligent when she did not have the second surgery sooner than she did.


Individuals do not need to undergo “brutal” medical procedures in order to demonstrate reasonable diligence in discovering the cause of a medical problem for the purposes of the statute of limitations.