Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JOHN P. NICHOLS MATTHEW J. JANKOWSKI
Anderson & Nichols Kopka Pinkus Dolin & Eads, LLC
Terre Haute, Indiana Indianapolis, Indiana
IN THE May 13 2013, 9:33 am
COURT OF APPEALS OF INDIANA
VICKIE FENOGLIO, as Personal Representative
)
of the Estate of PAUL FENOGLIO, Deceased,
)
)
Appellant-Respondent, )
)
vs. ) No. 84A01-1211-PL-513
)
BOGUSLAW GLUSZAK, M.D., )
)
Appellee-Petitioner, )
)
and )
)
STEVE ROBERTSON, COMMISSIONER OF )
THE INDIANA DEPARTMENT OF INSURANCE )
and BOGUSLAW GLUSZAK, M.D., )
)
Non-Respondents. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable John T. Roach, Judge
Cause No. 84D01-1107-PL-6918
May 13, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Vickie Fenoglio, as personal representative of the estate of her husband, Paul
Fenoglio, appeals the trial court’s grant of final summary judgment in favor of Boguslaw
Gluszak, M.D. We affirm.
The relevant facts are undisputed. After Paul committed suicide, Vickie, as personal
representative of his estate, filed a proposed medical malpractice complaint against Dr.
Gluszak and Dr. Gregory Brock, alleging that they committed malpractice by respectively
approving and issuing the prescription of a medication to Paul that allegedly caused his
suicide. A thirty-day prescription for the medication was issued on March 6, 2009; Paul
committed suicide on March 16, 2009; and Vickie filed the complaint with the Indiana
Department of Insurance on March 11, 2011.
On July 22, 2011, Dr. Brock moved for summary judgment on the basis that the
complaint was barred by the two-year statute of limitations. See Ind. Code § 34-18-7-1(b)
(stating that a tort claim “may not be brought against a health care provider based upon
professional services or health care that was provided or that should have been provided
unless the claim is filed within two (2) years after the date of the alleged act, omission, or
neglect”). On January 9, 2012, the trial court granted final summary judgment for Dr. Brock.
Vickie appealed that order, and another panel of this Court affirmed. Fenoglio v.
Brock, No. 84A04-1202-PL-59, 2012 WL 5954638 (Ind. Ct. App. Nov. 29, 2012), trans. not
sought. We noted that Indiana Code Section 34-18-7-1 “is an occurrence-based statute,
meaning that the statute of limitations begins to run on the date the alleged negligent act
occurred rather than on the date it was discovered, as long as potential plaintiffs are able to
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discover the alleged malpractice within two years from the occurrence.” Id. at *2. Vickie
argued that because Paul was under Dr. Brock’s continuing care and taking the medication
after March 11, 2009, the doctrine of continuing wrong applied and made her complaint
timely. Based on Gradus-Pizlo v. Acton, 964 N.E.2d 865 (Ind. Ct. App. 2012), we rejected
Vickie’s argument and held that Dr. Brock’s alleged act of malpractice occurred when he
prescribed the medication on March 6, 2009, “more than two years prior to the date Vickie
filed the complaint.” Id.
On May 11, 2012, Dr. Gluszak filed a similar summary judgment motion, which the
trial court granted on October 22, 2012. In this appeal, which is based on substantially
similar facts, Vickie asks us to reach a different result but cites no persuasive authority for
doing so. Consequently, we affirm.
Affirmed.
ROBB, C.J. and FRIEDLANDER, J., concur.
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