Teresa A. Houser, Personal Rep. of the Est. of Anonymous Physician v. Stacy Kaufman, C.K., and Brent Kaufman Teresa A. Houser, Personal Rep. v. Stacy Kaufman

FOR PUBLICATION

ATTORNEYS FOR APPELLANT/APPELLEE, ATTORNEYS FOR APPELLEE/
Teresa A. Houser, APPELLANT, C.K., et al,

PETER H. POGUE D. BRUCE KEHOE
CARLA V. GARINO CHRISTOPHER G. STEVENSON
Schultz & Pogue, LLP Wilson Kehoe & Winningham
Indianapolis, Indiana Indianapolis, Indiana

IN THE
FILED
Aug 10 2012, 9:44 am
COURT OF APPEALS OF INDIANA
CLERK
of the supreme court,
court of appeals and
tax court

TERESA A. HOUSER, Personal Representative )
for the ESTATE OF ANONYMOUS )
PHYSICIAN, Deceased, )
)
Appellant, )
)
vs. ) No. 50A03-1201-MI-19
)
STACY KAUFMAN, C.K., )
and BRENT KAUFMAN, )
)
Appellees. )
__________________________________________)
)
TERESA A. HOUSER, Personal Representative )
for the ESTATE OF ANONYMOUS PHYSICIAN, )
Deceased. )
)
Appellant, )
)
vs. )
)
STACY KAUFMAN, et al., )
)
Appellees, )
 APPEAL FROM THE MARSHALL CIRCUIT COURT
The Honorable Curtis D. Palmer, Judge
Cause No. 50C01-1012-MI-29

August 10, 2012

OPINION - FOR PUBLICATION

BARNES, Judge

Case Summary

Theresa Houser, as Personal Representative of the Estate of Anonymous Physician

Dr. K. (“the Estate”), appeals the trial court’s denial of the Estate’s motion for summary

judgment in the medical malpractice suit filed by Stacy Kaufman. C.K. appeals the trial

court’s grant of summary judgment in favor of the Estate with respect to his medical

malpractice claim against Dr. K.1 We affirm.

Issues

The restated issues before us are:

I. whether Stacy’s claim against the Estate is
constitutionally time-barred by the Medical
Malpractice Act’s statute of limitations; and

II. whether C.K.’s claim against the Estate fails
because Dr. K. owed no duty to C.K.

Facts

1
Stacy’s parents, Mary and Brent Kaufman, also are named plaintiffs in this case. However, the alleged
injuries here were sustained by Stacy and her son, C.K. For the sake of simplicity, we will refer only to
Stacy and C.K. as the parties.
2
 The evidence most favorable to Stacy and C.K. as the summary judgment non-

movants is that Stacy was born to Mary and Brent Kaufman on April 1, 1974. Dr. K. was

the Kaufmans’ family physician who delivered Stacy and was Stacy’s doctor thereafter.

When Stacy was born, Dr. K. ordered that a blood test for phenylketonuria (“PKU”) be

performed on her. Although the blood test revealed that Stacy had PKU, Dr. K. never

communicated that result to Mary and Brent.

A physician who counseled Stacy in 2007 described PKU as follows:

Amino acids are the building blocks for body proteins, and
they are converted into different forms by enzymes. Classic
PKU is an inherited condition in which a person cannot
breakdown the amino acid, phenylalanine, due to a lack in a
specific enzyme, which then leads to a build-up in the body.
The excess phenylalanine is toxic to the central nervous
system and can cause mental retardation, increased muscle
tone, microcephaly, and certain physical features. Treatment
for PKU is a special diet that restricts the dietary intake of
phenylalanine, and must be followed to prevent central
nervous system damage. . . .

Women affected by PKU must pay special attention to their
diet if they wish to become pregnant, since high levels of
phenylalanine in the uterine environment can cause severe
malformation and mental retardation in the child. However,
women who maintain an appropriate diet can have normal,
healthy children.

App. p. 145. As described in the second paragraph, maternal PKU that affects a baby is a

condition separate from PKU “and can even affect babies who do not have the PKU

disease.” See http://medical-dictionary.thefreedictionary.com/phenylketonuria (last

visited June 28, 2012).

3
 Because Dr. K. never communicated the PKU test results to Mary and Brent or

otherwise advised them that Stacy had PKU, she was never placed on a special, low-

phenylalanine diet. Early in Stacy’s childhood, Mary and Brent noted that she appeared

to be developmentally delayed and exhibited other symptoms that were consistent with

her having untreated PKU, such as severe diaper rash. Mary and Brent took Stacy to

various doctors, including specialists at Riley Children’s Hospital in Indianapolis

(“Riley”) when she was four, to determine the cause of these symptoms. These doctors,

however, failed to diagnose Stacy with PKU. Instead, they told Mary and Brent that they

“needed to just accept her cognitive impairment and help her learn to live with the

problems she was experiencing.” Id. at 115. Stacy graduated from high school, although

she was placed in special education classes. As an adult, Stacy has an IQ of seventy-four,

or “mild to borderline mental retardation . . . .” Id. at 127. She is unable to hold a job

and receives public assistance. Dr. K., meanwhile, died in 1981.

Stacy gave birth to C.K. in November 2005. C.K. was born with microcephaly,

i.e. a small head, and dysmorphic facial features, but a genetic test performed shortly

after birth and a CT scan performed a few months later failed to reveal a cause for these

abnormalities. Because of developmental delays and other issues, C.K. visited a

specialist at Riley on June 1, 2007. Stacy mentioned during this visit that she was being

treated for “lesions” on her brain but that multiple sclerosis had been ruled out. This

specialist recommended that C.K. follow up with a medical geneticist, but made no

mention of PKU or maternal PKU as a possible cause of C.K.’s difficulties.

4
 On July 13, 2007, C.K. was seen by a medical geneticist at Riley. In his written

notes of the consultation, the geneticist stated:

There are several possibilities that could explain [C.K.’s]
microcephaly. One of the possibilities could be a maternal
infection, however, there is no supporting evidence. Another
possibility is a chromosomal problem, but the CGH
(comparative genomic hybridization) test ruled out that
explanation. There is the possibility of the patient’s
microcephaly being isolated, or found alone, then again he
does exhibit other minor physical findings. The possibility of
the patient’s mother having PKU . . . or
hyperphenylalaninemia should be ruled out due to her blond
hair, light skin, and mental delays.

Id. at 145. The geneticist also recommended, among several other things, that someone

“[o]btain phenylalanine levels on the mother to rule out maternal PKU or

hyperphenalaninemia.” Id. Mary does not recall being advised at this visit that Stacy

might have PKU, as opposed to being advised generally that further testing was needed.

On August 2, 2007, Stacy visited a neurologist. The neurologist’s written notes

from the visit stated in part, “Elevated phenylalanine level was confirmed by recent urine

quantitation—likely has PKU.” Id. at 148. Mary recalls being told by the neurologist at

this visit that Stacy “could have PKU, but further testing must be done.” Id. at 107.

Further testing conducted on August 6, 2007, confirmed the PKU diagnosis, and the

neurologist conveyed the news to the Kaufmans on August 7, 2007. Mary then began

researching PKU, and on September 18, 2007, she eventually managed to obtain the

records of Stacy’s birth, including the 1974 test confirming Stacy had PKU that had

never been communicated to Mary and Brent.

5
 The Kaufmans filed a proposed medical malpractice complaint against Dr. K. with

the Indiana Department of Insurance on August 4, 2009, alleging negligence in his failure

to communicate the results of the PKU test.2 Houser was appointed to be the personal

representative for Dr. K.’s estate. On July 7, 2011, the Estate filed a motion for

preliminary determination of law and summary judgment in the trial court, asserting that

the two-year statute of limitations of the Medical Malpractice Act (“the Act”) barred

Stacy’s claims and that Dr. K. owed no duty to C.K. On November 18, 2011, the trial

court denied the summary judgment motion with respect to Stacy’s claims, concluding

that there was a genuine issue of material fact as to whether a constitutionally-based

exception to the Act’s statute of limitations applied and permitted Stacy’s action to

proceed, despite the passage of more than two years since the alleged act of malpractice

occurred. However, the trial court granted the Estate’s motion for summary judgment

with respect to C.K.’s claim, agreeing that C.K. could not recover because of the absence

of a physician-patient relationship between C.K. and Dr. K. C.K. initiated an appeal from

this grant of summary judgment, and the Estate sought and received permission to initiate

an interlocutory appeal from the denial of summary judgment with respect to Stacy.

Although the appeals were separately briefed, we have ordered that the appeals be

consolidated and will be issuing one opinion.

Analysis

2
The Kaufmans did not attempt to sue the doctors they visited during Stacy’s childhood who failed to
diagnose that she has PKU.
6
 We review a grant or denial of summary judgment de novo. Price v. Kuchaes, 950

N.E.2d 1218, 1225 (Ind. Ct. App. 2011), trans. denied. Summary judgment is proper

only if the designated evidence shows there is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter of law. Id. (citing Ind. Trial Rule

56(C)). In making this determination, courts must construe the evidence in a light most

favorable to the non-moving party and resolve all doubts as to the existence of a genuine

factual issue against the moving party. Id. at 1226. We may affirm a trial court’s

summary judgment ruling if it is sustainable on any theory or basis in the record. Id.

I. Statute of Limitations

We first address whether the Act’s statute of limitations bars Stacy’s claim against

the Estate.3 Indiana Code Section 34-18-7-1(b) states in part that a medical malpractice

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 of the date of the alleged act, omission, or neglect . . .

.” This is an “occurrence-based” rather than “discovery-based” statute of limitations,

meaning that “an action for medical malpractice generally must be filed within two years

from the date the alleged negligent act occurred rather than from the date it was

discovered.” Martin v. Richey, 711 N.E.2d 1273, 1278 (Ind. 1999). The statute is

3
The Act “does not apply to an act of malpractice that occurred before July 1, 1975.” Ind. Code § 34-18-
1-1. Dr. K.’s original failure to communicate the PKU diagnosis allegedly occurred in 1974, but Stacy
alleges that his malpractice continued for so long as he treated her and failed to inform her or Mary and
Brent of the PKU diagnosis, up until the time of his death in 1981. No party contends that the Act does
not govern this case.
7
constitutional on its face. Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 403-04,

404 N.E.2d 585, 603-04 (1980). However, the statute violates Article 1, Section 23 and

Article 1, Section 12 of the Indiana Constitution in cases where a plaintiff, within the

two-year period, does not know, or in the exercise of reasonable diligence could not have

discovered, that he or she had sustained an injury as a result of malpractice. Martin, 711

N.E.2d at 1284. “[I]n 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.” Id. If an act of malpractice and resulting injury cannot be discovered during the

limitations period given the nature of the asserted malpractice and the medical condition,

the occurrence-based statute of limitations cannot be enforced “without doing violence to

the Indiana Constitution.” Van Dusen v. Stotts, 712 N.E.2d 491, 496 (Ind. 1999).4

When considering whether the Act’s statute of limitations may constitutionally bar

a malpractice claim, a court must first “determine the date the alleged malpractice

occurred and determine the discovery date—the date when the claimant discovered the

alleged malpractice and resulting injury, or possessed enough information that would

have led a reasonably diligent person to make such discovery.” Booth v. Wiley, 839

4
We note the Estate seems to argue that Stacy’s claim was not tolled by the common law equitable
doctrine of fraudulent concealment and, therefore, her claim is barred as a matter of law and we need not
engage in the Martin analysis. In cases pre-dating Martin, our supreme court established that the Act’s
statute of limitations could be tolled if there was evidence a doctor either actively or constructively
concealed an act of malpractice. See Hughes v. Glaese, 659 N.E.2d 516, 519 (Ind. 1995). Because the
Martin analysis is one of constitutional dimension, we need not address whether the fraudulent
concealment doctrine applies in this case. Even if Stacy’s claim could not be saved by the fraudulent
concealment doctrine, we are still obligated to determine whether the statute can be applied to bar her
claim in a manner consistent with the Indiana Constitution. Stacy clearly made an argument based upon
Martin and its progeny to the trial court and repeats that argument on appeal. We limit our analysis of
this case to the requirements of the Indiana Constitution as outlined in Martin and its progeny.
8
N.E.2d 1168, 1172 (Ind. 2005). “If the discovery date is more than two years beyond the

date the malpractice occurred, the claimant has two years after discovery within which to

initiate a malpractice action.” Id. If, however, discovery is made within the two-year

period after the occurrence of malpractice, a suit must be filed within the limitations

period, unless it is not reasonably possible to do so. Id. In general, “a plaintiff’s lay

suspicion that there may have been malpractice is not sufficient to trigger the two-year

period.” Van Dusen, 712 N.E.2d at 499. On the other hand, a plaintiff need not

definitely know or be informed that malpractice caused his or her injury to trigger the

beginning of the statutory time period. Id.

In the case of a missed disease diagnosis, the Act’s statutory period “does not

begin to run until either a correct diagnosis is made or the patient has sufficient facts to

make it possible to discover the alleged injury.” Brinkman v. Bueter, 879 N.E.2d 549,

554 (Ind. 2008). The Estate suggests in part that the reasoning of cases such as Martin

and Van Dusen does not apply here, because those cases involved cancer that had a long

latency period, whereas Stacy’s PKU manifested itself early in her childhood. However,

this court has found no reason to restrict the Martin/Van Dusen analysis to only certain

types of diseases, or only to diseases with long latency periods. Shah v. Harris, 758

N.E.2d 953, 958 (Ind. Ct. App. 2001), trans. denied. Regardless of the type of disease,

injury, or illness at issue, the question is the same as far as determining a “trigger date”

for the statutory period: when did the claimant possess enough information that, in the

9
exercise of reasonable diligence, should have led to the discovery of the alleged

malpractice and resulting injury? Id. at 959.

It is often a question of fact as to when a plaintiff discovered facts that, in the

exercise of reasonable diligence, should have led to the discovery of the medical

malpractice and resulting injury and triggered the statute of limitations. Van Dusen, 712

N.E.2d at 499. The question may become one of law if there is undisputed evidence that

a doctor has expressly informed a plaintiff that he or she has a specific injury and that

there is a reasonable possibility, if not a probability, that the specific injury was caused

by a specific act at a specific time. Id. In such a case, a plaintiff generally is deemed to

have sufficient facts to require him or her to seek promptly any additional medical or

legal advice needed to resolve any remaining uncertainty or confusion he or she may

have regarding the cause of his injury and any legal recourse he or she may have. Id.

“The date is also set as a matter of law when there is undisputed evidence that leads to the

legal conclusion that the plaintiff should have learned of the alleged malpractice and

there is no obstacle to initiating litigation.” Herron v. Anigbo, 897 N.E.2d 444, 450 (Ind.

2008). If there are factual issues relating to the triggering of the limitations period, they

are to be resolved by the trier of fact at trial. Id. at 452.

Turning to the facts of this particular case, the date of the occurrence of

malpractice would have been no later than the death of Dr. K. in 1981, meaning the

statute of limitations would have expired sometime in 1983. In cases where the

malpractice claim is based upon a failure to diagnose an illness or disease, the occurrence

10
of malpractice extends to, but not beyond, the last opportunity the physician had to give a

proper diagnosis. Workman v. O’Bryan, 944 N.E.2d 61, 65-66 (Ind. Ct. App. 2011),

trans. denied. Obviously, assuming as the parties appear to do, that Stacy remained Dr.

K.’s patient until his death, he could not provide a diagnosis of Stacy’s PKU after he had

died. The first question then is, should Stacy (or her parents) in the exercise of

reasonable diligence have discovered the malpractice and resulting injury sometime

before what would have been the running of the statute in 1983? If so, they would have

been required to file suit within the two-year limitations period unless it was not

reasonably possible to do so. See Booth, 839 N.E.2d at 1172.

We note the evidence in the record that Stacy began exhibiting symptoms of PKU

in early childhood, including developmental delays and severe diaper rash. Such

evidence leaves open the possibility that Stacy could have been diagnosed with PKU at

some point during her childhood, in which case Dr. K’s alleged failure to inform Mary

and Brent of the newborn PKU test could or should have been discovered much, much

earlier than it was—possibly before 1983. The evidence most favorable to Stacy as the

non-movant, however, is that her parents did in fact exercise reasonable diligence in

attempting to determine the cause of the symptoms they were noticing. Mary and Brent

went so far as to have Stacy examined by specialists at Riley, who failed to diagnosis her

with PKU. There is no evidence that any of the doctors they visited ever mentioned PKU

as a possible cause of her ailments. Instead, they were told that they just needed to

11
“accept her cognitive impairment and help her learn to live with the problems she was

experiencing.” App. p. 105.

Our supreme court has stated:

Reliance on a medical professional’s words or actions that
deflect inquiry into potential malpractice can also constitute
reasonable diligence such that the limitations period remains
open. Where the plaintiff knows of an illness or injury, but is
assured by professionals that it is due to some cause other
than malpractice, this fact can extend the period for
reasonable discovery.

Herron, 897 N.E.2d at 451. This passage describes what allegedly happened here: Stacy

exhibited symptoms of PKU, her parents exercised reasonable diligence to determine

what was causing those symptoms, but medical professionals failed to diagnosis the PKU

at that time and gave Stacy’s parents answers that deflected any inquiry into whether

Stacy’s ailments could be the result of malpractice. Under such circumstances, the mere

fact that Stacy had symptoms of PKU during childhood is not enough to establish as a

matter of law that she should have discovered her claim against Dr. K. before 1983. In

other words, there is a question of fact as to whether Stacy and her parents discovered or

should have discovered an injury and act of malpractice before 1983 and whether they

were required to file suit before that time.

We now address when, if not by 1983, Stacy or her parents did discover or in the

exercise of reasonable diligence should have discovered her injury and act of malpractice,

thus triggering the two-year statute of limitations for purpose of Martin. See Booth, 839

N.E.2d at 1172. We focus our attention on the series of three doctors’ visits in the

12
summer of 2007, which finally culminated in a definitive diagnosis that Stacy has PKU.

These visits occurred on June 1, July 13, and August 2, 2007. The Estate contends that

Stacy gleaned sufficient information of a PKU diagnosis at any one or all of these visits,

thus making her proposed complaint filed on August 4, 2009, untimely, as it was filed

two years and two days after the latest appointment. We will address each appointment

in turn.

The June 1, 2007, appointment was with Dr. Brei, a developmental pediatrics

specialist at Riley. This appointment was focused upon possible causes of C.K.’s

developmental issues. Dr. Brei seems to have recommended that both Stacy and C.K.

undergo genetic testing. His notes of this appointment are unclear, but that is Mary’s

recollection of the visit.5 There is no mention in the notes of PKU, nor does Mary recall

any such mention. As a matter of law, there is no evidence of anything communicated

during this visit that would have put Stacy (or her parents) on notice of any malpractice

by Dr. K. or even that she was suffering from undiagnosed PKU.

The July 13, 2007 appointment was with Dr. Weaver, a geneticist at Riley. Mary

recalls the visit as follows:

I remember [Dr. Weaver] telling us that [C.K.]’s problems
were likely from a syndrome, but he did not tell us any
diagnosis. I do not recall him saying that Stacy might have
PKU. I do not recall him saying anything to imply that there
was a missed diagnosis at birth, nor was there any mention of
a possible claim against Stacy’s doctor. The primary thing I
recall about that meeting is that Dr. Weaver remained unsure
5
Mary and Brent filed affidavits in opposition to the Estate’s summary judgment motion but Stacy did
not.
13
 of a diagnosis and was planning further tests. The doctor had
asked Stacy if she had had any infections during her
pregnancy that might account for [C.K.] having
microcephaly. She responded that she had a difficult
pregnancy, but had had no infections. She did indicate that
her neurologist had been treating her for severe headaches,
but had not been able to determine the origin. The tests only
showed that she had high amino acid levels, but he didn’t
know what that meant. The doctor said that he wanted to talk
to Dr. Strawsburg about this. Nothing definitive was
concluded. We were not provided a diagnosis or an
explanation at that time, but we were advised that further
testing would be done. It seemed we were closer to getting an
answer.

App. pp. 106-07. Mary’s recollection of the appointment with Dr. Weaver does not

reflect that she or Stacy acquired sufficient information at this visit to alert them that

Stacy had been suffering for the previous thirty-three years from undiagnosed PKU.6

The Estate directs our attention to Dr. Weaver’s notes of this visit. In particular,

Dr. Weaver states, “The possibility of the patient’s mother having PKU . . . should be

ruled out . . . .” Id. at 145. The notes also recommend, “Obtain phenylalanine levels on

the mother to rule out maternal PKU . . . .” Id. The notes also contain two paragraphs

discussing the cause of and treatment for PKU and maternal PKU. Regardless of what is

stated in Dr. Weaver’s notes, however, it is unclear that everything written in the notes

was communicated verbatim to Stacy and Mary. Certainly, on summary judgment, we

decline to assume that the content of the notes was repeated verbatim to Stacy and Mary,

as opposed to merely relating Dr. Weaver’s thoughts on the case. The evidence most

6
The Estate asserts in its brief that Stacy admits that Dr. Weaver told her and Mary that she could have
PKU. We see no such admission, especially given Mary’s affidavit to the contrary.
14
favorable to Stacy as summary judgment non-movant, reflected in Mary’s affidavit, is

that there was no definitive mention of PKU by Dr. Weaver during the July 13, 2007

visit.

Finally, we address the appointment of August 2, 2007, which was with a

neurologist treating Stacy, Dr. Strawsburg. Between July 13 and August 2, Stacy’s urine

had been submitted for testing. At the August 2 visit, Mary recalls Dr. Strawsburg telling

her and Stacy “that the tests indicated an elevated amino acid level. He mentioned that

she could have PKU, but further testing must be done.” Id. at 107. Dr. Strawsburg’s

notes for the visit state, in more definitive language than was used in Mary’s recollection,

that Stacy “likely has PKU.” Id. at 148. As with Dr. Weaver, however, to the extent

there is a conflict between Mary’s affidavit and Dr. Strawsburg’s appointment notes, it is

Mary’s affidavit that is most favorable to Stacy as the summary judgment non-movant

regarding what was actually said to Mary and Stacy by Dr. Strawsburg at the August 2,

2007 appointment.

In fact, there was further confirmatory testing done after the August 2, 2007,

appointment. On August 7, 2007, Dr. Strawsburg informed Mary and Stacy by phone

that Stacy indeed did have PKU. After receiving this diagnosis, Mary began researching

PKU on the internet and learned that Stacy should have been tested for the disease at

birth. On September 18, 2007, Mary managed to locate the medical records from Stacy’s

birth and discovered that Dr. K. had ordered a PKU test at that time and that it was

positive.

15
 The August 2, 2007, appointment with Dr. Strawsburg arguably comes close to

having supplied Stacy with the necessary information to begin investigating whether she

had been the victim of medical malpractice. We cannot conclude, however, that this

appointment provided Stacy with the necessary information as a matter of law. First, we

note the discrepancy between Mary’s recollection of what was actually said at the

appointment as opposed to what was written in Dr. Strawsburg’s notes.

Second, and perhaps more importantly, there is no designated evidence in the

record that Stacy or Mary were informed at this visit that Stacy should have been tested

for PKU at birth, or that the PKU could have been controlled early in her life if a PKU

diagnosis had been communicated in a timely fashion and she had been placed on an

appropriate diet. In fact, Mary’s affidavit states the opposite, that even as of August 7,

2007, when it was definitively confirmed that Stacy had PKU, she was unaware that

Stacy should have been tested for the disease at birth. Reasonable diligence in the

context of discovering medical malpractice claims requires a patient to take action if he

or she knows of both the injury and/or disease and the treatment that either caused or

failed to identify or improve it. Jeffrey v. Methodist Hospitals, 956 N.E.2d 151, 159 (Ind.

Ct. App. 2011). Here, even if the evidence can be construed as indicating that Stacy

knew or should have known she had PKU as of August 2, 2007, the evidence most

favorable to her is that she did not know of the treatment that failed to identify that

condition, or did not know that anything even could have been done to help her if the

condition had been more timely diagnosed. The Act’s two-year statute of limitations

16
would not have been triggered on August 2, 2007. This is entirely unlike a case in which

a patient develops symptoms of an injury or illness in close conjunction with medical

treatment and begins suspecting that something was wrong with the treatment, at which

time the statute of limitations may be triggered. See Williams v. Adelsperger, 918

N.E.2d 440, 447 (Ind. Ct. App. 2009), trans. denied.

At the very least, there is a question of fact in this case as to whether the trigger

date for the statute of limitations was August 2, August 7, or September 18, 2007, or

some other date and, therefore, whether Stacy’s proposed complaint filed on August 4,

2009, was timely. As such, the trial court properly denied the Estate’s summary

judgment motion premised on the argument that Stacy’s proposed complaint was

untimely as a matter of law.

We are, of course, fully cognizant that we are permitting a nearly four-decade old

claim of malpractice to proceed at this time. Nonetheless, it is not unheard of in our

jurisprudence to permit lawsuits based upon decades-old acts of negligence to proceed,

under very limited circumstances. See, e.g., Jurich v. Garlock, Inc., 785 N.E.2d 1093,

1095 (Ind. 2003) (holding, in case involving asbestos exposure between 1946 and 1986,

that ten-year statute of repose for asbestos-related claims would be unconstitutional as

applied if there was evidence a physician could have diagnosed plaintiff with asbestos-

related disease within ten years of asbestos exposure but plaintiff had no reason to know

of the diagnosable condition until after the ten years had passed). We believe the

circumstances here are very limited and highly unlikely to be repeated. We note that this

17
case appears to be, by an order of magnitude of several decades, the longest period of

time in which the Martin analysis has been employed in an appellate decision to extend

the Act’s statute of limitations. Moreover, if the allegations here are true, Stacy has been

forced to suffer needlessly from a debilitating, but treatable, illness for almost forty years.

Given the highly unique facts here, and given the designated evidence of diligence by

Stacy and her parents with respect to her PKU diagnosis (or lack thereof for the first

thirty-three years of her life), we conclude that allowing this case to proceed does not

contravene public policy and is consistent with the Act’s goals of maintaining sufficient

medical treatment and controlling malpractice insurance costs by, in part, encouraging

the prompt presentation of claims. Van Dusen, 712 N.E.2d at 496.

II. Duty to C.K.

Next, we address whether Dr. K. owed a duty of care to C.K.7 As with any

negligence claim, a physician must owe a duty to a plaintiff seeking damages for alleged

medical malpractice in order for such a claim to proceed. Sawlani v. Mills, 830 N.E.2d

932, 938 (Ind. Ct. App. 2005), trans. denied. “The existence of a duty in a negligence

case is a question of law appropriate for appellate determination.” Cram v. Howell, 680

N.E.2d 1096, 1097 (Ind. 1997). Generally, Indiana courts employ a three-part test

derived from Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), for determining the existence

7
We observe that if Dr. K. did owe a duty to C.K., C.K.’s cause of action against Dr. K. is timely and it is
governed by a different statute of limitations than Stacy’s claim. Indiana Code Section 34-18-7-1(b)
provides that although generally a medical malpractice suit must be filed within two years of the alleged
act, omission, or neglect, “a minor less than six (6) years of age has until the minor’s eighth birthday to
file.” C.K. was three when the proposed complaint was filed.
18
of a duty, although that test is not necessarily exclusive. See id. at 1097 n.1. The Webb

analysis considers three factors: (1) the relationship between the plaintiff and defendant;

(2) the reasonable foreseeability of harm to the person injured by the defendant’s

conduct; and (3) public policy concerns. Webb, 575 N.E.2d at 995. Application of this

balancing test is necessarily case specific. Cram, 680 N.E.2d at 1097.

Although the trial court focused, and the Estate now focuses, on the lack of a

physician-patient relationship between Dr. K and C.K. as justification for finding that

there was no duty owed, our supreme court clearly has held that such a relationship is not

always necessary for the existence of duty in a medical malpractice action. In Cram, for

example, our supreme court held that a doctor owed a duty to a third party killed by the

doctor’s patient in a car crash caused by the patient passing out behind the wheel after

seeing the doctor. The doctor had given the patient immunizations that the doctor knew

repeatedly caused the patient to lose consciousness, but the doctor failed to monitor the

patient for a sufficient amount of time before permitting him to leave the office and failed

to warn the patient of the dangers of operating a motor vehicle after receiving the shots.

Cram, 680 N.E.2d at 1097-98. In Webb, by contrast, our supreme court held that a

physician owed no duty to a third party shot by a patient to whom the physician had

prescribed steroids, leading to the patient’s psychosis that led to the shooting. Webb, 575

N.E.2d at 997.

The case that requires our scrutiny, because of its similarity to this case, is Walker

v. Rinck, 604 N.E.2d 591, 595 (Ind. 1992). In Walker, a woman pregnant with a child

19
who had Rh positive blood was diagnosed as having Rh positive blood herself, when in

fact the mother’s blood was Rh negative. The mother should have been given, but was

not, an injection of RhoGAM to prevent the formation of antibodies that arise when an

Rh negative mother is carrying an Rh positive fetus and which antibodies can be harmful

to fetuses conceived during future pregnancies. The mother gave birth to three additional

children, who alleged that they suffered injuries due to antibodies that could have been

prevented from forming if the mother had received a RhoGAM injection at the time of

the first pregnancy. The three children sued the lab that tested mother’s blood during the

first pregnancy and the doctor who had treated her for medical malpractice. The trial

court granted summary judgment to the doctor and lab, finding no duty owed to the

children, and this court affirmed.

Our supreme court reversed, holding that it was appropriate to recognize a “pre-

conception” tort in those circumstances to permit “a person not yet conceived at the time

of the negligent act to sue the negligent actor.” Walker, 604 N.E.2d at 594. Employing

the Webb balancing test, the court first addressed the relationship between the doctor and

lab and the injured children. It noted that the only purpose of the RhoGAM injection

would have been for the benefit of the children, as the mother’s well-being would not

have been affected either way if the injection had or had not been given. Thus, the court

found that the children “were the beneficiaries of the consensual relationship between

their mother” and the doctor. Id. at 595. Regarding foreseeability, the court stated, “It

can hardly be argued that the injuries suffered by the Walker children were not

20
foreseeable when the medical reason to give RhoGAM to their mother was to prevent the

exact injuries which they allege occurred.” Id. Finally, with respect to public policy

considerations, the court noted that the administration of RhoGAM neither harms nor

benefits the mother and has no direct relation to her personal health and that there is a

“well-established medical practice of giving RhoGAM to an Rh negative mother who has

given birth to an Rh positive child in order to protect future children of such mother from

injury.” Id. Balancing these three factors, the court found the doctor and lab owed a duty

to the children. Id. Chief Justice Shepard dissented from this holding, finding in part that

it had an “extremely unattractive” feature of potentially exposing “medical providers to

decades or even generations of potential liability.” Id. at 597 (Shepard, C.J., dissenting).

Because the question of duty is case sensitive and thus may differ from case to

case, we do not read Walker as requiring the imposition of a duty upon Dr. K. with

respect to C.K. and the PKU testing of Stacy. Regarding the relationship between Dr. K

and C.K., the first thing to note is that unlike in Walker, where the three subsequent

children were born within one decade of their older sibling and the original negligence,

C.K. was born thirty-one years after the alleged negligent act and twenty-four years after

Dr. K.’s death. The time span is much more remote than in Walker. Additionally, the

Walker majority placed much emphasis on the fact that a RhoGAM injection is solely for

the benefit of a mother’s future children, not the mother herself. Here, a PKU diagnosis,

and a failure to convey such a diagnosis, has a direct and immediate impact on the health

of the original patient. In the case of a female patient, such missed diagnosis may have a

21
devastating impact upon a future child, but such impact is more speculative, remote, and

secondary than is the case with a missed RhoGAM injection.

Turning to foreseeability, the risk that untreated PKU poses to a fetus is well-

documented.8 We acknowledge that it should have been foreseeable to Dr. K. that if he

failed to convey the positive PKU test result to Stacy’s parents, that she might someday

grow up to have children of her own, who could have maternal PKU. The foreseeability

factor is not as strong as in Walker, given the time period involved. There is also the fact

that Stacy exhibited symptoms of PKU beginning in early childhood, apart from the

blood test, that arguably could have led to a PKU diagnosis well before she had children,

but such diagnosis unfortunately did not occur here.

Finally, turning to public policy concerns, we conclude they weigh against a

finding of duty. Recognizing duty in a case such as this could extend a physician’s

potential liability for several decades after an alleged negligent act. This would

contravene the Act’s purpose of placing reasonable limits upon a physician’s exposure to

malpractice claims. Additionally, there is no doubt a strong public policy in favor of

ensuring that infants are properly tested for PKU and that any such test results be

expeditiously conveyed to the infant’s parents. However, the original patient him- or

herself is directly harmed and sustains injury if a positive PKU test result is not conveyed

and the patient may state a claim for malpractice against the doctor. In the

Walker/RhoGAM scenario, there is no malpractice-based incentive for the doctor to

8
The Estate does not, at this time anyway, deny that this was well-documented in 1974.
22
provide correct treatment if an injured child could not sue, because the alleged

malpractice would have no impact on the patient, i.e. the mother, but only the mother’s

children; if only the mother could sue, she would have no damages or injury of her own

of which to complain. By contrast, the public policy of encouraging PKU testing and

conveying of test results is protected by permitting the original patient to pursue a claim

against the doctor for improper testing or failing to convey test results.

In balancing the relationship of the parties, the foreseeability of harm, and public

policy, we conclude the trial court correctly ruled that Dr. K. owed no duty to C.K. with

respect to the PKU testing of Stacy. We acknowledge some tension between our holding

on this issue and on the statute of limitations issue, particularly with respect to our

concerns regarding the time period between the alleged original negligence and the filing

of this lawsuit. Nevertheless, the two issues are governed by different legal standards

and, as such, has led to two different results.

Conclusion

We affirm the trial court’s denial of the Estate’s summary judgment motion to the

extent it sought to bar Stacy’s claim under the Act’s statute of limitations. We also

affirm its granting of summary judgment to the Estate with respect to Dr. K. owing no

duty to C.K.

Affirmed.

FRIEDLANDER, J., and MAY, J., concur.

23