FILED
Jun 28 2019, 8:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jason A. Scheele Richard W. Morgan
Ashley M. Gilbert-Johnson Jerome W. McKeever
Rothberg Logan & Warsco LLP Pfeifer Morgan & Stesiak
Fort Wayne, Indiana South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anonymous Doctor A, June 28, 2019
Anonymous Hospital B, and Court of Appeals Case No.
Anonymous Medical Facility C, 18A-CT-2785
Appellants-Defendants, Appeal from the Fulton Circuit
Court
v. The Honorable Christopher Lee,
Judge
Carol Foreman, Trial Court Cause No.
Appellee-Plaintiff 25C01-1801-CT-41
May, Judge.
[1] Anonymous Doctor A, Anonymous Hospital B, and Anonymous Medical
Facility C (hereinafter “Medical Providers”) appeal the trial court’s denial of
their motion for preliminary determination and summary judgment. Medical
Providers argue the trial court erred in denying summary judgment because
Carol Foreman filed suit outside the timeframe allowed by the statute of
Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019 Page 1 of 10
limitations. We reverse and remand with instructions for the trial court to enter
summary judgment in favor of Medical Providers.
Facts and Procedural History
[2] On November 25, 2015, Anonymous Doctor A surgically repaired Foreman’s
hip fracture at Anonymous Hospital B. In the course of surgery, Anonymous
Doctor A inserted a femoral rod into Foreman’s femur. Post-surgery, Foreman
returned for follow-up visits, and Anonymous Doctor A ordered x-rays of
Foreman’s femur. The x-rays did not show any fracture of the femoral rod.
However, on January 22, 2016, Foreman felt a sudden pain in her groin area
and was unable to walk. She went to Anonymous Hospital B for an x-ray that
revealed the femoral rod had fractured. On January 23, 2016, surgeons in
Indianapolis performed revision surgery on Foreman.
[3] Foreman continued to see Doctor A after the revision surgery until May 2016.
She initially believed the femoral rod manufacturer was at fault for the rod’s
failure, and she sent a claim to the manufacturer seeking compensation for the
hardware failure and revision surgery. However, on September 8, 2016, the
manufacturer denied her claim.
[4] On January 19, 2018, Foreman filed her proposed complaint with the Indiana
Department of Insurance and her complaint for damages in the Fulton Circuit
Court asserting Doctor A negligently placed the femoral rod during surgery,
which resulted in the rod’s fracture. On May 18, 2018, Medical Providers filed
Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019 Page 2 of 10
a motion for preliminary determination and summary judgment arguing
Foreman’s claims were barred by the statute of limitations. The trial court held
a hearing on Medical Providers’ motion on August 24, 2018, and issued an
order denying the motion on September 18, 2018. The trial court certified its
order denying summary judgment for interlocutory appeal, and we accepted
jurisdiction.
Discussion and Decision
[5] When reviewing the grant or denial of a motion for summary judgment, we
apply the same standard as the trial court: whether there is a genuine issue of
material fact and whether the moving party is entitled to judgment as a matter
of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 973 (Ind.
2005). We grant summary judgment “only if the evidence sanctioned by
Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact
and the moving party deserves judgment as a matter of law.” Id. Further, we
construe all evidence in favor of the nonmoving party and resolve all doubts as
to the existence of a material issue of fact against the moving party. Id. While
the moving party must put forth evidence to support the motion, “the opposing
party may not rest on his pleadings, but must set forth specific facts, using
supporting materials contemplated by Trial Rule 56, which demonstrate that
summary judgment is not appropriate.” Conrad v. Waugh, 474 N.E.2d 130, 134
(Ind. Ct. App. 1985).
Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019 Page 3 of 10
[6] Consequently, the moving party bears the initial burden of demonstrating the
absence of a genuine issue of material fact. Cole v. Gohmann, 727 N.E.2d 1111,
1113 (Ind. Ct. App. 2000). However, if the moving party establishes that an
action was filed outside the statute of limitations, then “the burden shifts to the
nonmovant to establish an issue of fact material to a theory that avoids the
defense.” Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000).
Statute of Limitations
[7] The statute of limitations governing medical malpractice actions centers on the
date the alleged malpractice occurred. It states a “claim, whether in contract or
tort, may not be brought against a health care provider 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.” Ind. Code § 34-18-7-1. Thus, a patient’s time to file suit
begins on the date of the occurrence of the alleged malpractice. Palmer v.
Gorecki, 844 N.E.2d 149, 154 (Ind. Ct. App. 2006). Foreman alleges Doctor A
negligently inserted her femoral rod on November 25, 2015. Thus, she had
until November 25, 2017, to file suit. As Foreman did not file suit until
January 19, 2018, she failed to file suit within that timeframe.
[8] Nevertheless, there are circumstances in which a patient may not have sufficient
facts to discover that malpractice occurred within two years. Therefore, our
Indiana Supreme Court has laid out a methodology for determining whether a
claim is barred by the statute of limitations.
Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019 Page 4 of 10
Initially, a court must 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. 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. But if the discovery
date is within two years following the occurrence of the alleged
malpractice, the statutory limitation period applies and the action
must be initiated before the period expires, unless it is not
reasonably possible for the claimant to present the claim in the
time remaining after discovery and before the end of the statutory
period.
Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005). The date when a plaintiff
learns of malpractice and resulting injury, or in the exercise of reasonable
diligence should have recognized malpractice, is the “trigger date.” Anonymous
Physician v. Kendra, 114 N.E.3d 545, 550 (Ind. Ct. App. 2018) (holding
complaint filed in 2015 was barred by the statute of limitations when decedent
had a number of heart procedures prior to his death and died in 2012), trans.
denied. “A plaintiff does not need to be told malpractice occurred to trigger the
statute of limitations.” Brinkman v. Bueter, 879 N.E.2d 549, 555 (Ind. 2008).
[9] The occurrence date of Foreman’s injury is November 25, 2015, because that is
the day Doctor A is alleged to have negligently implanted the femoral rod.
Foreman reasonably should have suspected negligence on January 22, 2016,
when her femoral rod fractured, because femoral rods are not supposed to
fracture. In fact, Foreman suspected the manufacturer of the femoral rod was
Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019 Page 5 of 10
negligent and sent a letter to the manufacturer. The manufacturer wrote back
in September 2016 denying liability, and Foreman apparently took no
additional action until filing the instant complaint on January 19, 2018.
[10] Foreman states in her affidavit that she “never had reason to believe that [she]
had a claim for medical malpractice until [her] attorneys filed a medical
malpractice complaint on January 19, 2018.” (App. Vol. II at 49.) This
conclusory statement does not create a genuine issue of material fact. Someone
must suspect malpractice in order to draft a complaint alleging malpractice.
Foreman fails to put forth any evidence about what prompted her to file suit. If
the failure of the femoral rod prompted Foreman to suspect malpractice, then
she discovered the potential malpractice twenty-two months before the
limitation period expired. If the letter from the manufacturer prompted
Foreman to suspect malpractice, then she discovered it fourteen months before
the limitations period expired. Either way, Foreman learned of the suit
sufficiently in advance of the limitations expiration date to file suit within two
years of the occurrence date. We have held that discovering potential
malpractice ten or eleven months before expiration of the statute of limitations
and failing to file suit is unreasonable. See Boggs, 730 N.E.2d at 697-98 (holding
plaintiff had reasonable time to file suit prior to expiration of statute of
limitations when plaintiff had eleven months before the limitation period
ended); Jeffrey v. Methodist Hosp., 956 N.E.2d 151, 160 (Ind. Ct. App. 2011)
(holding plaintiffs’ failure to file their action within ten months of learning of
potential malpractice was not reasonably diligent); Williams v. Adelsperger, 918
Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019 Page 6 of 10
N.E.2d 440, 448 (Ind. Ct. App. 2009) (holding plaintiff’s failure to file action
within eleven months of learning of potential malpractice was not reasonably
diligent). Therefore, we conclude Foreman knew about or reasonably should
have known about the alleged malpractice sufficiently in advance of expiration
of the statute of limitations for her to file suit, but she failed to do so.
Continuing Wrong Doctrine
[11] Foreman’s claim cannot be saved by the continuing wrong doctrine. The
continuing wrong doctrine “applies where an entire course of conduct combines
to produce an injury.” Gradus-Pizlo v. Acton, 964 N.E.2d 865, 871 (Ind. Ct.
App. 2012). If the doctrine applies, the statutory limitations period does not
begin to run until the end of the course of conduct resulting in injury. Id. “In
order to apply the doctrine, the plaintiff must demonstrate that the alleged
injury-producing conduct was of a continuous nature.” Id.
[12] Foreman asserts that her claim is timely because she continued to see Doctor A
until May 2016. However, the alleged wrong, misplacement of a femoral rod
during surgery, is an isolated event, not conduct of a continuing nature. Doctor
A monitored Foreman before and after the revision surgery, but Foreman does
not put forth any facts to show Doctor A’s conduct after inserting the femoral
rod amounts to malpractice. See Anonymous Physician v. Rogers, 20 N.E.3d 192,
200 (Ind. Ct. App. 2014) (holding continuing wrong doctrine did not apply
when malpractice complaint alleged doctor used chemical to which patient was
allergic and complaint was filed more than two years after doctor stopped using
Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019 Page 7 of 10
the chemical, even though patient continued to see doctor after he stopped
using the chemical), trans. denied.
Fraudulent Concealment
[13] Nor has Foreman demonstrated Medical Providers fraudulently concealed facts
preventing her from discovering the potential malpractice. Fraudulent
concealment is an equitable doctrine that tolls the statute of limitations when
the defendant “has prevented a plaintiff from discovering an otherwise valid
claim, by violation of duty or deception.” Garneau v. Bush, 838 N.E.2d 1134,
1142 (Ind. Ct. App. 2005), trans. denied. Fraudulent concealment may be active
or passive. Id. Passive fraudulent concealment “arises when the physician does
not disclose to the patient certain material information.” Id. at 1142-43.
Passive concealment tolls the beginning of the statute of limitations period until
“the time the patient-physician relationship ends or, as in the active
concealment case, until discovery, whichever is earlier.” GYN-OB Consultants,
L.L.C. v. Schopp, 780 N.E.2d 1206, 1210 (Ind. Ct. App. 2003) (internal citation
omitted), trans. denied. “Active concealment involves affirmative acts of
concealment intended to mislead or hinder the plaintiff from obtaining
information concerning the malpractice. When active concealment is involved,
the statute does not expire until a reasonable time after the patient discovers the
malpractice or with reasonable diligence could have discovered the
malpractice.” Id. (internal citation omitted). Therefore, “the critical event for
purposes of determining whether an action was timely filed is the plaintiff’s
Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019 Page 8 of 10
discovery of facts that should have alerted them that they have a cause of
action.” Garneau, 838 N.E.2d at 1143.
[14] Foreman asserts Doctor A fraudulently concealed facts that would have led her
to realize she had a potential claim when he told her he had “no idea” why the
femoral rod failed. (Appellee Br. 22.) However, she did not designate evidence
to demonstrate Doctor A actively concealed the reason for the femoral rod
failure. Nor did she designate evidence to demonstrate Doctor A’s statement
that he had “no idea” why the rod failed was inaccurate or intended to mislead.
Nor is there evidence Doctor A failed to disclose material information to
Foreman. She knew who performed her surgery. The doctors accurately
informed her of the results of post-operative x-rays, and Foreman knew when
the rod fractured. Thus, Foreman has not demonstrated that the doctrine of
fraudulent concealment saves her claim. See Johnson v. Sullivan, 952 N.E.2d
787, 792 (Ind. Ct. App. 2011) (holding fraudulent concealment doctrine did not
apply as to provide patient’s estate a reasonable time beyond expiration of the
two-year limitations period to file medical malpractice complaint), trans. denied.
Conclusion
[15] Foreman had ample time to file suit within two years of the date of the alleged
malpractice, but she failed to do so, and her claim cannot be saved by the
continuing wrong doctrine or fraudulent concealment. Accordingly, we must
reverse the trial court and remand with instructions for the trial court to enter
summary judgment on behalf of Medical Providers.
Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019 Page 9 of 10
Reversed and remanded.
Mathias, J., and Brown, J., concur.
Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019 Page 10 of 10
Anonymous Doctor A, Anonymous Hospital B, and Anonymous Medical Facility C v. Carol Foreman
Combined Opinion