MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
May 01 2020, 8:34 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert J. Palmer Clint A. Zalas
Mishawaka, Indiana Alex C. Bowman
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anonymous Physician, May 1, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CT-2278
v. Appeal from the St. Joseph
Superior Court
Ian Michelle Thompson, The Honorable Jenny Pitts-
Appellee-Plaintiff Manier, Judge
Trial Court Cause No.
71D05-1805-CT-198
Altice, Judge.
Case Summary
[1] Anonymous Physician (Physician) last provided medical care to Ian Thompson
in 1999. Many years later, Thompson filed a proposed medical malpractice
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complaint against him. Physician filed a motion for summary judgment,
arguing that Thompson’s claims were barred by the applicable statute of
limitations. The trial court denied summary judgment and, on Physician’s
motion, certified the order for interlocutory appeal.
[2] We reverse and remand.
Facts & Procedural History
[3] Physician, as an OB/GYN, treated Thompson at the South Bend Clinic
between January 1997 and early 1999, when Thompson was in her early
thirties. Prior to seeing Physician, Thompson had a rather complex history of
gynecological issues and procedures, which included three cervical biopsies. As
a result, Thompson had a significantly shortened cervix.
[4] When Thompson became pregnant in early 1997, Physician determined that
Thompson needed a transvaginal cerclage to help prevent preterm labor due to
the condition of her cervix. Physician surgically placed the transvaginal
cerclage in her cervix in April 1997. Despite this, Thompson went into preterm
labor and her son was delivered via cesarean section, not performed by
Physician, on July 21, 1997. During one of her postpartum visits, the cerclage
was removed by Physician in the office.
[5] By January 1998, Thompson was pregnant again and sought treatment from
Physician. Due to the high-risk nature of the pregnancy, Physician consulted
with Dr. Kurt Stiver, a maternal fetal medicine specialist, to determine whether
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a cerclage should be used and, if so, whether a transabdominal cerclage would
be preferred over a transvaginal cerclage. Physician noted that he had no
experience with a transabdominal cerclage and would need another provider to
perform the procedure if indicated. Dr. Stiver saw Thompson on February 24,
1998, and determined that a transabdominal cerclage was the best option. Dr.
Stiver referred Thompson to Dr. Leo Bonaventura for placement of the
transabdominal cerclage.
[6] Thompson had a transabdominal cerclage placed sometime in March 1998, but
the record before us contains no verification that Dr. Bonaventura performed
the surgery and no records relating to that procedure. It is clear, however, that
Physician was not involved in the procedure, as he had never – and has never
since – placed or removed a transabdominal cerclage. 1
[7] Physician then resumed care of Thompson throughout her pregnancy, which
ended with an elective cesarean section on September 8, 1998. Prior to the
surgery, Thompson and Physician discussed sterilization options, including a
hysterectomy, and decided on a bilateral partial salpingectomy (removal of a
portion of her fallopian tubes) to be done along with the cesarean section. The
1
Based on research, Physician understood that removal of transabdominal cerclages can be “very difficult.”
Appellant’s Appendix Vol. 3 at 46. Regarding the risks, he explained during his deposition:
Again, I don’t do them, so it would just be relying on what I’ve read. Number one, you
sometimes can’t see it because of scar tissue. Again, they can have significant bleeding, which
can lead to transfusions, hysterectomy…. And then the risk of injuring adjacent structures,
because you’re working next to the bladder, the intestines. So from what I have read, it can be
very difficult to remove, and you can have pretty significant complications from that.
Id. Given these risks, “it’s not uncommon for a transabdominal cerclage to never be removed.” Id. at 55.
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pre- and post-operative medical reports indicate that the transabdominal
cerclage remained in place. Although it is unclear whether these reports were
ever provided to Thompson, Physician testified in a deposition, based on his
standard operating procedure: “I just know that it was part of our discussion
preoperatively through the consent process that [the cerclage] would stay in
place[.]” Appellant’s Appendix Vol. 3 at 57. The only procedures planned and
consented to were the cesarean section and the bilateral partial salpingectomy.
Removal of the transabdominal cerclage was not part of the planned operation.
[8] Thompson had postpartum visits with Physician in September and October
1998. The brief records from these appointments make no reference to any
discussion regarding the transabdominal cerclage.
[9] On November 20, 1998, Thompson had her final office visit with Physician for
a follow-up pap smear. Thompson was also diagnosed with a (reoccurring)
umbilical hernia at the time. Physician referred Thompson to another
physician to treat the hernia. Upon receiving the results of the pap, Physician
also referred her to a gynecological oncologist for a colposcopy and opinion
regarding whether a total hysterectomy was needed. Dr. Katherine Look
examined Thompson in March 1999 and advised that she proceed with either a
LEEP conization or a hysterectomy. Thompson indicated that she would
discuss the options with her husband and then get back in touch with Dr. Look,
but Thompson never followed up with Dr. Look. Thompson’s last contact with
Physician for treatment was a phone call in April 1999.
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[10] On August 18, 2014, Thompson had a gynecological visit with Dr. Carlton
Lyons for treatment of a uterine mass and related pelvic pain. Thereafter, on
April 29, 2015, Dr. Lyons performed a total hysterectomy on Thompson, along
with other related procedures. During the surgery, Dr. Lyons discovered and
removed the transabdominal cerclage, which had “generat[ed] tremendous scar
tissue and adhesions” between the bladder and left side of the uterus. Id. at 3.
As a result, the surgery took a great deal of time.
[11] On October 12, 2016, Thompson filed her proposed complaint with the Indiana
Department of Insurance (the Department). Thompson alleged, incorrectly,
that Physician performed the surgery that placed the transabdominal cerclage.
Thompson went on to allege that Physician negligently failed to remove the
transabdominal cerclage at the time of her 1998 cesarean section and failed to
inform her both that it was not removed and of the risks of retaining the
cerclage. Thompson alleged, in the complaint, that the “negligent conduct was
not realized, nor in the exercise of ordinary diligence could it be realized, until
April 29, 2015” when Dr. Lyons discovered the cerclage. Id. at 12.
[12] While the matter remained pending with the Department, Physician invoked
the jurisdiction of the trial court in May 2018 by filing a motion for preliminary
determination to compel discovery. Thereafter, on April 17, 2019, Physician
filed the instant motion for summary judgment arguing that the claims were
barred by the two-year medical malpractice statute of limitations. In support of
his motion, Physician noted that the alleged malpractice occurred in 1998,
approximately eighteen years before Thompson’s proposed complaint was filed.
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Further, Physician designated evidence that Thompson knew, or should have
known, in 1998 that the transabdominal cerclage remained in place following
the cesarean section. The designated evidence included medical records from
the South Bend Clinic (including records related to Physician’s treatment of
Thompson), medical records from Dr. Lyons’s treatment of Thompson, and
Physician’s deposition taken in October 2018.
[13] Thompson filed a response to the motion for summary judgment on May 17,
2019. In her response, Thompson summarized her position as follows:
Physician failed to inform Ms. Thompson … that the cerclage—a
polyester—fiber vestige of Ms. Thompson’s fertility—remained
wrapped around her cervix. Not until seventeen years later
would Ms. Thompson discover the abandoned cerclage in the
painful fibrotic mess filling her abdomen. Here, the designated
evidence makes clear that Physician remained silent as to the
presence of the cerclage and Physician’s silence was negligent.
Ms. Thompson remained unaware of the cerclage until April
2015.
Id. at 72-73. Thompson filed no additional designated evidence in support of
her summary judgment response.
[14] The trial court held a brief summary judgment hearing on June 26, 2019. At
the hearing, counsel for Thompson acknowledged that Thompson had not been
deposed and, thus, indicated “unfortunately I’m not operating with a record of
what the Plaintiff has testified to.” Transcript at 14. Despite this lack of
deposition testimony, counsel indicated a belief that Thompson thought the
cerclage was removed at the time of the cesarean section. Further, counsel
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suggested that Thompson did not actually learn that the cerclage remained in
place until the 2015 hysterectomy. The following colloquy took place between
Thompson’s counsel and the trial court:
[Court]: So if we haven’t taken her deposition, the lack of
consultation is the absence of a note in the record? What’s the
evidence to show there’s a lack of consultation?
[Counsel]: That there is - - that there’s a medical record that
lacks that consultation.
[Court]: Okay. So it’s an absence of information.
[Counsel]: That’s correct. Yeah. And that’s where - - I believe
that that’s part of where this dispute of material fact comes in. Is
that you have - - you have the Defendant testifying that, “This is
what I should have said,” the records say something different,
and the Plaintiff who has pled that that’s not - - that I - - “I had
no idea that this was what the circumstance was until my
subsequent physician told me 18 years down the road.”
Id. at 15. Physician’s counsel concluded his remarks by observing:
Your Honor, we’ve heard a lot about what the Plaintiff thought,
what the Plaintiff knew. There’s no evidence. It would have
been simple for them to obtain an affidavit from the Plaintiff to
create a genuine issue of material fact as to what she understood.
But we don’t have that. What we have is the designated
evidence that we provided where she went to another physician
in Indianapolis, had it … placed, she knew that the Defendant in
this case does not do transabdominal cerclages, has never done
them. The operative reports indicate that it was in place before
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the C section and was in place after the C section. So … that was
approximately 18 years before the Complaint was filed.
****
We’re simply talking about was there information that she knew
more than two years before she filed the proposed Complaint
from which she could understand that the cerclage was not
removed.
Id. at 17-18.
[15] The trial court took the matter under advisement and then issued an order, on
July 12, 2019, denying Physician’s motion for summary judgment. On
Physician’s motion, the trial court certified the order for interlocutory appeal on
September 3, 2019. This court accepted jurisdiction on November 1, 2019.
Physician now appeals from the denial of his motion for summary judgment.
Discussion & Decision
[16] When a trial court’s summary judgment order is challenged on appeal, our
standard of review is the same as that of the trial court. Manley v. Sherer, 992
N.E.2d 670, 673 (Ind. 2013). Summary judgment shall be granted “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 a judgment as a matter of
law.” Ind. Trial Rule 56(C). “We construe all factual inferences in favor of the
non-moving party and resolve all doubts as to the existence of a material issue
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against the moving party.” Manley, 992 N.E.2d at 673. On review, we are
limited to the designated evidence before the trial court. See T.R. 56(H).
[17] Where, as here, a defendant in a medical malpractice action asserts the statute
of limitations as an affirmative defense on summary judgment, the defendant
bears the burden of establishing that the action was commenced outside that
statutory period. Manley, 992 N.E.2d at 674. “Once the defendant has
established that the action was filed outside the statute of limitation, the burden
shifts to the plaintiff to establish ‘an issue of fact material to a theory that avoids
the defense.’” Id. (quoting Boggs v. Tri–State Radiology, Inc., 730 N.E.2d 692,
695 (Ind. 2000)); see also LeBrun v. Conner, 702 N.E.2d 754, 757 (Ind. Ct. App.
1998) (“The burden is on the plaintiff to establish that she has exercised
reasonable diligence to discover the alleged malpractice.”). Our Supreme Court
has explained that this burden shifting is appropriate because “the facts
establishing any incapacity or the reasonableness of the plaintiff’s diligence in
filing a claim are uniquely within the plaintiff's knowledge.” Herron v. Anigbo,
897 N.E.2d 444, 448 (Ind. 2008) (plurality opinion).
[18] “The Indiana Medical Malpractice Act’s two-year statute of limitations runs
from the date of the negligent act or omission.” Herron, 897 N.E.2d at 448
(citing Ind. Code § 34-18-7-1(b)). “[W]here the constitutionality of th[is]
occurrence-based limitations period as applied to a given case is in issue, the
ultimate question becomes the time at which a patient ‘either (1) knows of the
malpractice and resulting injury or (2) learns of facts that, in the exercise of
reasonable diligence, should lead to the discovery of the malpractice and the
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resulting injury.’” Id. at 448-49 (quoting Booth v. Wiley, 839 N.E.2d 1168, 1172
(Ind. 2005)). This critical date is referred to as the “trigger date.” Id. at 449.
“A plaintiff whose trigger date is after the original limitations period has
expired may institute a claim for relief within two years of the trigger date.” Id.
[19] In this case, Physician established that Thompson did not file the action until
October 12, 2016, about eighteen years after the alleged negligent conduct and
well outside of the two-year medical malpractice statute of limitations. Cf.
Manley, 992 N.E.2d at 674 (medical malpractice defendant met their initial
burden on summary judgment by establishing that the action was filed four
days after the two-year statute of limitations had run). Thus, the burden shifted
to Thompson to establish a genuine issue of fact to rebut the defense. Cf. id.
(holding that the plaintiff’s designated evidence established genuine issues of
fact as to the trigger date of the malpractice claim).
[20] Thompson argues, as she did below, that the affirmative defense was rebutted
with evidence that she did not learn that the transabdominal cerclage remained
in place (i.e., it was not removed by Physician during the 1998 cesarean section)
until her 2015 hysterectomy, which was performed by Dr. Lyons. In other
words, she claims that the designated evidence raises a question of fact
regarding the proper trigger date, making summary judgment improper. We
cannot agree, as there is no designated evidence that Thompson acted with
reasonable diligence in this case.
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[21] Once a movant designates evidence to support a prima facie showing that there
are no genuine issues of material fact and that the movant is entitled to
judgment as a matter of law, the nonmovant cannot simply rest upon the mere
allegations of her pleadings. McDonald v. Lattire, 844 N.E.2d 206, 212 (Ind. Ct.
App. 2006). “Rather, only those facts alleged by the respondent/nonmovant
and supported by affidavit or other evidence ‘must be taken as true.’” Id.
(quoting Blankenbaker v. Great Cent. Ins. Co., 281 N.E.2d 496, 500 (Ind. Ct. App.
1972)); see also T.R. 56(E) (“When a motion for summary judgment is made
and supported as provided in this rule, an adverse party may not rest upon the
mere allegations or denials of his pleading, but his response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that there is
a genuine issue for trial.”). Allegations in a complaint “are not testimony,
affidavits, sworn statements, or evidence of any kind.” McDonald, 844 N.E.2d
at 215.
[22] Here, Physician’s designated evidence showed that he did not place the
transabdominal cerclage in Thompson and has never placed or removed this
type of cerclage in his practice. He also understood that there were risks
associated with removal of transabdominal cerclages and that they could
remain inside patients indefinitely sometimes. Additionally, Physician testified
in his deposition that the only procedures planned and consented to by
Thompson were the cesarean section and bilateral partial salpingectomy on
September 8, 1998, and removal of the transabdominal cerclage was not part of
the planned operation. Physician testified further that, based on his standard
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operating procedure: “I just know that it was part of our discussion
preoperatively through the consent process that [the cerclage] would stay in
place[.]” Appellant’s Appendix Vol. 3 at 57.
[23] In addition to making a prima facie showing that the proposed complaint was
filed well beyond the two-year statute of limitations, Physician designated
evidence, as set out above, indicating that Thompson was actually aware of, or
at the very least should have been aware of, the continued placement of the
transabdominal cerclage following the 1998 surgery. Although the medical
records from Thompson’s two postpartum appointments with Physician do not
reference any discussions about the cerclage, this does not negate Physician’s
deposition testimony that he would have discussed this preoperatively with her
and that removal of the cerclage was not part of the planned procedures. 2
[24] Thompson’s attempt to raise a question of fact based on unsupported
allegations in her complaint – reasserted by her counsel at the summary
judgment hearing – is improper. She could have submitted her own affidavit
setting forth her knowledge or belief regarding the removal of the cerclage,
when she first learned of its continued placement, and/or what occurred during
her consultations with Physician, but she failed to designate any such evidence.
Cf. McDonald, 844 N.E.2d at 215 (“McDonald should have sought and
2
We need not reach the issue presented by the parties regarding whether knowledge of the pre- and post-
operative reports – which both documented the continued placement of the cerclage – should be imputed to
Thompson. Regardless, Physician’s deposition testimony indicates that Thompson was placed on actual
notice of this fact pre-operatively during discussions with her regarding the planned surgery.
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submitted sworn affidavits from Shelton and Hart if McDonald wished to
designate their statements as evidence of a genuine issue of material fact
precluding summary judgment.”). Considering only the properly designated
evidence, we conclude that there is no genuine issue of fact regarding whether
Thompson knew of the continued placed of the transabdominal cerclage at the
time of her 1998 surgery.
[25] In sum, Physician met his initial burden on summary judgment by designating
prima facie evidence that the action was commenced outside that statutory
period. Thompson, on the other hand, wholly failed to designate evidence to
meet her burden of establishing an issue of fact to rebut the statute of limitations
defense. Thus, the trial court erred when it denied summary judgment and, on
remand, is directed to enter summary judgment in favor of Physician.
[26] Judgment reversed and remanded.
Bailey, J. and Crone, J., concur.
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Anonymous Physician v. Ian Michelle Thompson (mem. dec.)
Combined Opinion