Anonymous Doctor A, Anonymous Hospital B, and Anonymous Medical Facility C v. Carol Foreman

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

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 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

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 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).

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[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.

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 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

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 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

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 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

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 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

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 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.

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Reversed and remanded.

Mathias, J., and Brown, J., concur.

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