Malpractice claim statute of limitation is not "tolled" during pendency of appeal
The Estate of Frank Early sued Mr. Early's physician, Jeffrey Parker, M.D., claiming that Parker negligently approved Early to scuba dive. During a dive undertaken after Parker's approval, Early died of cardiac-related complications of which the Estate claims Parker was fully apprised and which the Estate claimed should have lead to Parker refusing Early's requested approval. The case was mistakenly dismissed WITH PREJUDICE (meaning it could not be re-filed) for procedural reasons.The Estate successfully appealed this decision and filed a second action in the interim. Ultimately, the Court of Appeals held that the three-year appeal required to overturn the original, incorrect dismissal, did not "toll" or extend the statute of limitations, and therefore, the defendant in the current suit could raise the statute of limitations despite the fact that "there are clearly unusual circumstances that went beyond plaintiff's control [and] that call out for equity." The Court did indicate on remand, however, that the Plaintiff alleged that Defendant had expressly agreed not to raise the statute of limitations while the appeal was pending: if Plaintiff can substantiate that claim, the Court noted that the Estate may be entitled to estop the Defendant from raising the timeliness issue.