STATUTE OF LIMITATIONS – MEDICAL NEGLIGENCE: GMRIK INC F/K/A GENERAL MILLS RESTAURANTS, INC. V. EMBERTON (COA 4/20/2007)

GMRIK INC  F/K/A GENERAL MILLS RESTAURANTS, INC.  V. EMBERTON
CIVIL: Limitation of actions in medical negligence (accrual of cause of action and discovery rule)
MEDICAL NEGLIGENCE:  Statute of limitations and discovery rule
2005-CA-002355.pdf
PUBLISHED: REVERSING AND REMANDING (VANMETER)
DATE RENDERED: 4/20/2007

GMRI appeals judgment entered by Warren Circuit Court following a jury trial awarding Appellee $233,666.05 for him having contracted hepatitis A from dining at Appellant’s Red Lobster restaurant. Appellant argued that the 1-year statute of limitations had expired prior to Appellee filing suit while Appellee countered that suit was timely filed pursuant to the discovery rule.

The relevant timeline was that Appellee had eaten at the restaurant on 7/28/01 and was hospitalized on 8/30/01. Prior to his release on 9/05/01, Appellee was given the diagnosis following which the health department investigated the matter to determine the source. Appellee never followed up with the department to see if the source had been identified and admittedly never attempted to conduct his own independent investigation. The record reflects that Appellee did not suspect Red Lobster as the source until his attorney visited him in May 2004 about the condition (the attorney was representing other people who had also contracted the condition at Red Lobster).

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 GMRI 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.

Digested by Chad Kessinger

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

Leave a Reply

Your email address will not be published.