April 16, 2010

TO ALL INTERESTED COMPANIES

On April 15, 2010, the Kansas Court of Appeals issued its opinion in Martin v. Naik, and the opinion may be of interest to you.

Curly Martin was allegedly the victim of medical negligence on April 7, 2004, and by April 8, 2004, he was in a coma. He remained in a coma until October 25, 2004, when he died. On October 25, 2006, the heirs of Mr. Martin filed suit for wrongful death and the personal representative of his estate filed a survival action. The trial court dismissed both claims based on the statute of limitations. The statute of limitations on both claims was two (2) years.

On appeal, the Court of Appeals reversed and held that both claims were brought timely. With regard to the wrongful death claim, the Court recognized that the original injury to Curly Martin occurred in April of 2004, and the lawsuit wasn’t commenced until October of 2006. However, the Court held that the statute of limitations for wrongful death (two years) did not start to run on the date of injury. Instead, it started to run on the date of death, regardless of the date of injury.

With regard to the claim by the estate, the Court recognized that the claim was limited to the damages sustained by Mr. Martin after the date of injury and before the date of death. However, the Court held that since Mr. Martin was in a coma from April until October, he couldn’t have been aware he had been injured as a result of someone else’s negligence. Therefore, the statute of limitations did not start to run on the date of his injury. Instead, it started to run on the date of his death.

As has been our practice in the past, I have not enclosed a copy of the opinion with this letter. If you would like to have a copy of the opinion, you can access here.

                                                                       
SCHMITT MANZ SWANSON & MULHERN, P.C.
Paul Hasty, Jr.
7101 College Blvd., Suite 350
Overland Park, KS  66210
Telephone: (913) 317-8068
phasty@msmlawkc.com