Anonymous M.D. and Anonymous Hospital v. Kenneth Lockridge, on behalf of Lily Lockridge, Rose Lockridge, and Kenneth Lockridge, Jr., Minors, and Commissioner of Indiana Dept. of Insurance

FILED
Jun 29 2016, 8:21 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Christopher L. Riegler Martin H. Kinney Jr.
Kimberly E. Schroder Dolt, Thompson, Shepherd &
Hall, Render, Killian, Kinney, PSC
Heath & Lyman, P.C. Louisville, Kentucky
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Anonymous M.D. and June 29, 2016
Anonymous Hospital, Court of Appeals Case No.
Appellants-Petitioners, 39A01-1509-CT-1498
Appeal from the Jefferson Circuit
v. Court
The Honorable Darrell M. Auxier,
Kenneth Lockridge, on behalf of Judge
Lily Lockridge, Rose Lockridge, Trial Court Cause No.
and Kenneth Lockridge, Jr., 39C01-1412-CT-982
Minors,
Appellees-Respondents,

and

Commissioner of Indiana
Department of Insurance,
Non-Moving Respondents

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 Baker, Judge.

[1] Traci Leach died from lung cancer after a radiologist failed to diagnose a tumor

on a CT scan. After Leach’s death, multiple medical malpractice claims were

filed, including a claim filed by three of her young children. The trial court

dismissed all of the claims except for the children’s because the claims were

untimely filed. But it found that because the children were under the age of six

at the time of the alleged negligence and under the age of eight at the time of the

filing of the complaint, their claims were not time-barred. Given the plain

language of the statutes at issue, we find that the trial court did not err by

finding that the children’s claims were not time-barred.

[2] Anonymous M.D. (the Doctor) and Anonymous Hospital (the Hospital)

(collectively, the Appellants) bring this interlocutory appeal of the trial court’s

order partially denying their summary judgment motion. The Appellants argue

that the two-year statute of limitations applies to the claims of Traci’s children

and that the trial court erred by denying summary judgment on those claims.

We affirm and remand for further proceedings.

Facts 1

[3] On July 6, 2011, Traci Leach underwent a CT scan at the Hospital. The CT

scan was later interpreted by the Doctor, who failed to identify a lung tumor

1
We held oral argument in Indianapolis on June 14, 2016. We thank counsel for both parties for their
outstanding written and oral presentations.

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 that was allegedly present and diagnosable on the CT scan. Traci learned on

August 30, 2012, that she had lung cancer, and she died on July 17, 2014.

[4] Traci and Kenneth Lockridge had three children together: Lily, Rose, and

Kenneth Jr. (the Children). Leach also had two other children, Dustin and

Ashley Leach. On August 27, 2014, the Children, Dustin and Ashley Leach,

and Traci’s Estate filed a complaint with the Indiana Department of Insurance,

alleging that the Appellants had acted negligently and that the negligence

resulted in Traci’s death. Kenneth alleges that in July 2011, the Children were

under the age of six and that at the time the complaint was filed, they were

under the age of eight.2

[5] On December 12, 2014, the Appellants filed a motion for summary judgment in

the trial court, arguing that they were entitled to judgment as a matter of law

because the complaint was not timely filed. On July 20, 2015, the trial court

issued an order granting summary judgment with respect to the claims of the

Estate, Dustin, and Ashley. It denied summary judgment with respect to the

Children. In pertinent part, the trial court found as follows:

Findings of Fact

***

2
There is no evidence in the record establishing the ages of the Children. While there was evidence
regarding their ages contained within the Children’s response to the Appellants’ summary judgment motion,
the trial court struck that response and evidence attached thereto from the record because it was untimely
filed. We will address the issue of the Children’s ages below. It is undisputed that Dustin and Ashley were
over the age of six in July 2011 and over the age of eight when the complaint was filed.

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 4. Traci Leach became aware of the alleged malpractice and
resulting injury over ten months before the two year
limitation period prescribed by the Medical Malpractice
Act (“MMA”) expired.

***

9. Three of Leach’s children . . . were less than six years of
age in July of 2011. Her remaining children, Dustin Leach
and Ashley Leach, were more than six years of age in July
of 2011. [fn 1]

[fn1] The Court has . . . stricken the . . . sole source
of information regarding the ages of the
children. The Court assumes that there is no
material issue of fact as to the ages of the
children and that their ages are as found by
the Court. . . . Without knowledge of the
children’s ages, the Court would be
compelled to deny Petitioner’s motion as to
all the children. . . .

***

Conclusions of Law

***

4. . . . Leach had ample time to file her action between the
date of her discovery (August 30, 2012) and the date of the
running of the occurrence based statute of limitations (July
8, 2013). Her failure to do so barrs [sic] her Estate from
pursuing its claim.

5. . . . The children’s claims are derivative claims. . . .
Persons having derivative claims are patients within the
meaning of Indiana Code 34-18-2-22. . . .

***

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 7. The fact that their mother’s underlying claim is time
barred does not prevent the Leach children from pursuing
a derivative claim. A derivative claim may be maintained
even if the underlying claim would be time barred.

***

12. Indiana Code 34-18-7-1, the MMA statute of limitations,
provides that a medical malpractice claim is barred unless
it is filed within two years after the date of the alleged
malpractice, except that a minor less than six years of age
has until the minor’s eighth birthday to file.

13. The claims of Dustin Leach and Ashley Leach are time-
barred as they were not filed within 2 years of the date of
occurrence . . . .

14. [The Children] were less than six years of age on the date
of the occurrence of the alleged malpractice. Pursuant to
Indiana Code 34-18-7-1 they had until their eighth
birthdays to timely file their claims. Their claims were,
therefore, timely filed and are not barred by the MMA
statute of limitations.

Appellants’ App. p. 58-64 (internal citations omitted). The Appellants now

bring this interlocutory appeal of the denial of their summary judgment motion

with respect to the Children.

Discussion and Decision
I. Standard of Review
[6] Our standard of review on summary judgment is well settled:

We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in

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 favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). To the extent that the

resolution of this case turns on an issue of statutory interpretation, we apply a

de novo standard of review. Meyer v. Beta Tau House Corp., 31 N.E.3d 501, 513

(Ind. Ct. App. 2015).

II. Statute of Limitations
[7] The Appellants contend that the Children’s negligence claim is barred by the

relevant statute of limitations and that, as a result, summary judgment should

be granted in favor of the Appellants. A medical malpractice defendant who

asserts the statute of limitations as a defense bears the burden of establishing

that the action was commenced beyond the statutory period. Boggs v. Tri-State

Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000). Once the defendant meets that

burden, the burden shifts to the plaintiff to establish “an issue of fact material to

a theory that avoids the defense.” Id. Failure to file a proposed medical

malpractice complaint within the statute of limitations is generally fatal to that

claim. McGill v. Ling, 801 N.E.2d 678, 682 (Ind. Ct. App. 2004).

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[8] Indiana Code section 34-18-7-1(b) provides as follows:

A claim, whether in contract or tort, 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, except that a minor less than six (6)
years of age has until the minor’s eighth birthday to file.

The parties disagree about a number of things with respect to this statute of

limitations: (1) the date on which it began to run; (2) whether an exception

applies; and (3) whether the Children’s derivative claim can survive after the

underlying claim was dismissed as untimely.

[9] At the outset, we note that the parties also disagree about whether the

Children’s ages have been established such that the tolling provision even

arguably applies. It is true that the Children’s summary judgment response,

which contained the only evidence establishing their ages, was struck as

untimely. The trial court noted in its order that there was no material dispute

regarding the Children’s ages but explicitly stated that if the ages in the order

were incorrect, a motion to correct error to that effect could be filed.

Appellant’s App. p. 60 n.1. The Appellants filed a motion to correct error and

raised the Children’s ages as an issue therein, but they merely argued that there

was insufficient evidence supporting the ages—not that the ages were incorrect.

It is apparent that there is no genuine dispute regarding the Children’s ages, and

we decline to resolve this case on such a narrow, technical basis. We turn,

therefore, to the parties’ substantive arguments.

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 A. When Did the Limitations Period Begin to Run?
[10] Here, the parties debate about whether the two-year statute of limitations began

to run on the date of the alleged negligence or on the date of Traci’s death. Our

Supreme Court has already answered this question. If the patient’s death was

caused by the malpractice, then the “claim must be filed within two years of the

occurrence of the malpractice.” Ellenwine v. Fairley, 846 N.E.2d 657, 665 (Ind.

2006). The Ellenwine Court reached this result by examining the purposes of the

MMA:

One of the principal legislative purposes behind the MMA in
general and the two-year occurrence-based statute of limitations
in particular was to foster prompt litigation of medical
malpractice claims. Because a patient who has been the victim of
medical negligence could well live many more than two years
beyond the occurrence of the malpractice only to ultimately die
as a result of it, applying the two-years-after-death limitations
period of the wrongful death statute where a patient dies from the
malpractice seems to us totally inconsistent with this legislative
goal.

Id. at 664. In the case at hand, therefore, the occurrence-based two-year statute

of limitations contained within the MMA applies notwithstanding the fact that

Traci died as a result of the alleged negligence. In other words, the two-year

limitations period began to run on July 6, 2011, the date on which the alleged

negligence occurred, and had lapsed by the time the parties filed their complaint

on August 27, 2014, unless an exception applies.

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 B. Does an Exception Apply?
[11] There may be instances in which discovery of alleged malpractice after the

alleged malpractice occurs extends the statute of limitations. Our Supreme

Court has provided a framework in which to evaluate this situation. First, a

court must determine the date on which the alleged malpractice occurred, and

second, it must determine the “trigger date,” which occurs when the claimant

has sufficient information that a reasonably diligent person would have

discovered the alleged malpractice. Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind.

2005).

[12] If the trigger date occurs more than two years beyond the date of the

malpractice, then the claimant has two years after discovery to initiate the

claim. Id. at 1169. But if the trigger date is within the two years following the

malpractice, the action must be initiated within the two-year limitation “unless

it is not reasonably possible for the claimant to present a claim in the time

remaining after discovery and before the end of the statutory period.” Id. at

1172.

[13] If the claimant has insufficient time to file, the claim must be initiated “within a

reasonable time” following discovery. Id. So long as the time remaining is not

so short “that it is impractical for a plaintiff to file a claim at all,” the two-year

statute of limitations applies. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692,

697-98 (Ind. 2000). Courts of this State have found that time periods ranging

from four to eleven months were sufficient for a medical malpractice claim to

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 be filed. See Herron v. Anigbo, 897 N.E.2d 444, 453 (Ind. 2008) (four months);

Overton v. Grillo, 896 N.E.2d 499, 504 (Ind. 2008) (nine months); Boggs, 730

N.E.2d at 699 (eleven months).

[14] In this case, the alleged negligence occurred on July 6, 2011, meaning that the

two-year statute of limitations expired on July 6, 2013. The Appellants argue

that the trigger date in this case is August 30, 2012, when Traci learned that she

had lung cancer. We agree. If that is the trigger date, then the two-year statute

of limitations applies and Traci had ten remaining months in which to file her

claim. We also agree that ten months is a sufficient time in which to file and

that, consequently, no discovery-based exception to the two-year period should

apply. That said, the Children may still be entitled to pursue their claim based

on the tolling provision in the statute.

C. The Tolling Provision
[15] As noted above, the relevant MMA statute provides that “[a] claim” sounding

in medical malpractice must be filed within two years of the alleged negligence,

“except that a minor less than six (6) years of age has until the minor’s eighth

birthday to file.” I.C. § 34-18-7-1(b). The central question presented by this

case—whether the minor included in this statute must be the party injured by

the alleged negligence or, instead, may be a non-injured party bringing a

derivative claim—is an issue of first impression.

[16] The statute applies to a claim based upon “health care” provided by a

healthcare provider. I.C. § 34-18-7-1(b). “Health care” is defined as “an act or

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 treatment performed or furnished, or that should have been performed or

furnished, by a health care provider for, to, or on behalf of a patient during the

patient’s medical care, treatment, or confinement.” I.C. § 34-18-2-13 (emphasis

added). “Patient,” in turn, is defined as follows:

an individual who receives or should have received health care
from a health care provider, under a contract, express or implied,
and includes a person having a claim of any kind, whether derivative or
otherwise, as a result of alleged malpractice on the part of a health
care provider. Derivative claims include the claim of a parent or
parents, guardian, trustee, child, relative, attorney, or any other
representative of the patient including claims for loss of services,
loss of consortium, expenses, and other similar claims.

I.C. § 34-18-2-22 (emphases added). The plain language of this statute includes

derivative claimants as “patients,” and includes the claims of children as

derivative claims. Our legislature could have drafted the definition of patients

to exclude derivative claimants, but it elected not to do so. We are bound by

the language it selected, which clearly includes derivative claimants as patients.

[17] The portion of the statute that tolls the two-year limitations period likewise

contains no limitation excluding derivative claimants. Instead, it merely says

that the two-year limitations period applies “except that a minor less than six

(6) years of age has until the minor’s eighth birthday to file.” I.C. § 34-18-7-

1(b). Here, again, the General Assembly could have provided that the “minor”

included within the tolling provision must be the person who underwent the

allegedly negligent medical treatment. It did not do so. Given that the statute

applies to “health care” negligence claims, that “health care” is provided to

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 “patients,” that “patients” explicitly includes derivative claimants, and that

there is no further limitation of these terms, we can only conclude that the

tolling provision applies to children whether they are bringing direct or

derivative medical malpractice claims. Therefore, we decline to reverse the trial

court on this basis.

[18] The Appellants argue that even if the tolling provision would apply to

derivative claims brought by children, in this case it does not save their claim

because the underlying claim was dismissed as untimely. They direct our

attention to Ellenwine, in which our Supreme Court held that when an adult

patient is the victim of medical negligence and dies as a result of the negligence,

a derivative action for consortium under a wrongful death claim must be filed

within the MMA’s two-year limitations period rather than under the limitations

period provided by the statutory scheme governing wrongful death actions. 846

N.E.2d at 664. In other words, if the underlying claim is time-barred, so must

be the claim that derives from it. To hold otherwise would be to make an end-

run around the purposes of the MMA—to “foster prompt litigation of medical

malpractice claims.” Id.

[19] We acknowledge the wisdom of the Ellenwine holding but find that it does not

apply to child claimants who fall under the tolling provision. The General

Assembly has carved out an explicit exception to the two-year statute of

limitations for children in a limited and specific age range. We have already

held that those children may be either direct or derivative claimants. It would

render the tolling provision meaningless as to children who are derivative

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 claimants to say that they are nonetheless bound by the two-year limitations

period governing all other claims. It is well established that we may not

interpret one provision of a statute in a way that renders other provisions of the

statute meaningless. E.g., Henderson v. Coutee, 829 N.E.2d 1028, 1030 (Ind. Ct.

App. 2005). Given that our legislature has decided to treat children under the

age of eight in a special way for the purpose of the medical malpractice

limitations period and has not limited the special treatment to direct claimants,

we find that the tolling provision must apply whether the children are derivative

or direct claimants. Consequently, the trial court did not err by determining

that the Children in this case were not time-barred because of the two-year

statute of limitations period governing the underlying claim from which their

claim derives.

[20] The judgment of the trial court is affirmed and remanded for further

proceedings.

May, J., and Brown, J., concur.

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