On July 8, the Indiana Supreme Court by a 4-1 vote, declared a two-year statute of limitations for medical malpractice victims unconstitutional as applied to the victim of undiagnosed breast cancer. The case is Martin v. Richey , No. 53S04-9805-CV-271.

Unlike most medical malpractice statutes of limitations, the Indiana law measured the limitations period from the time of treatment and not from the moment of reasonable discovery. In allowing the suit to go forward, the Court found that the Indiana Constitution's Privileges and Immunities and Right to a Remedy clauses prevented the harsh law from immunizing medical defendants when a disease or condition has a long latency period that prevents discovery of the alleged malpractice during the statutory limitations period.

The decision is a victory for those injured by medical malpractice and a victory for AAJ's Legal Affairs Department, which devised the strategy that emphasized the Indiana Constitution's guarantee of a right to a remedy. The innovative brief, authored by Ned Miltenberg of AAJ's Legal Affairs staff and argued by Harvard law professor Laurence Tribe, traced the roots of this constitutional right to Magna Carta and changed the Court's attitude about a constitutional provision that was previously regarded as toothless.

Although the decision was a narrow one, the Court declared the statute of limitations "unconstitutional . . . because it requires [a] plaintiff to file a claim before she is able to discover the alleged malpractice and her resulting injury, and, therefore, it imposes an impossible condition on her access to the courts and pursuit of her tort remedy." In this instance, the law worked an injustice because the plaintiff "could not reasonably be expected to discover the asserted malpractice and resulting injury within the two-year period given the nature of the asserted malpractice and of her medical condition."

While the Court chose not to explore the full implications of the constitutional provisions at issue, it also rejected the defendant's contention that a legislature has carte blanche to abolish any cause of action. Although the Court did not hold the constitutional right to a remedy to be a "fundamental right," requiring stringent enforcement, it did say that:

[i]f [the right] has any meaning at all, it must preclude the application of a two-year medical malpractice statute of limitations when a plaintiff has no meaningful opportunity to file an otherwise valid tort claim within the specified statutory time period because, given the nature of the asserted malpractice and the resulting injury or medical condition, plaintiff is unable to discover that she has a cause of action. Stated another way, the medical malpractice statute of limitations is unconstitutional as applied when plaintiff did not know or, in the exercise of reasonable diligence, could not have discovered that she had sustained an injury as a result of malpractice, because in such a case the statute of limitations would impose an impossible condition on plaintiff's access to courts and ability to pursue an otherwise valid tort claim. To hold otherwise would be to require a plaintiff to bring a claim for medical malpractice before becoming aware of her injury and damages, an essential element of any negligence claim, and this indeed would be boarding the bus to topsy-turvy land. (footnote omitted).