Effie Rogers, Mother and a/n/f and as Personal Representative of the Estate of Deborah Williams v. Dr. D and Clinic C

FILED
Jun 26 2020, 10:25 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Frederick W. Schultz Charles C. Dubes
Greene & Schultz Larry L. Barnard
Bloomington, Indiana Carson, LLP
Fort Wayne, Indiana
Gerald W. Mayer
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Effie Rogers, Mother and a/n/f June 26, 2020
and as Personal Representative Court of Appeals Case No.
of the Estate of Deborah 20A-CT-258
Williams, deceased, Appeal from the St. Joseph Circuit
Appellant-Defendant, Court
The Honorable John E. Broden,
v. Judge
Trial Court Cause No.
Dr. D and Clinic C, 71C01-1906-CT-233
Appellees-Plaintiffs.

Riley, Judge.

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 STATEMENT OF THE CASE
[1] Appellant-Petitioner, Effie Rogers, Mother and a/n/f and Personal

Representative of the Estate of Deborah Williams (Rogers), appeals the trial

court’s grant of summary judgment in favor of Appellees-Respondents, Dr. D

and Clinic C (Collectively, Dr. D), concluding, as a matter of law, that Rogers’

claims are barred by the statute of limitations.

[2] We affirm.

ISSUE
[3] Rogers presents three issues on appeal, which we consolidate and restate as the

following single issue: Whether, as a matter of law, Rogers’ claims, brought

under the Medical Malpractice Act, are barred by the statute of limitations.

FACTS AND PROCEDURAL HISTORY
[4] On April 17, 2015, Deborah Williams (Williams) consulted Dr. D for

complaints of right hip pain. Williams was a returning patient as Dr. D had

previously performed a left hip decompression surgery in 2003 and a total right

hip replacement surgery in 2007. After the consultation, Dr. D scheduled

Williams for surgery and she was admitted to the Memorial Hospital of South

Bend on May 18, 2015, undergoing surgery that same day. While performing

the surgery, Dr. D noted that the stem of Williams’ prosthetic was firmly fixed,

and he made numerous attempts to cut and remove the prosthesis. During one

of these attempts, Dr. D shattered Williams’ femur. In the recovery room, a

subluxation of Williams’ right hip was discovered and she was returned to the
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 operating room for reduction. At all times during these proceedings, Dr. D was

acting in the course and scope of his employment with Clinic C.

[5] Williams remained in the hospital following the surgery. On May 27, 2015, Dr.

D issued his Final Progress Note, memorializing his intent to discharge

Williams later that day. However, a nurse tending to Williams requested a

consultation because of Williams’ complaints of persistent hypertension,

clumsiness, and cold limbs. Williams was not discharged and received further

treatment at the hospital by other medical professionals, with Dr. D remaining

her attending physician. She passed away on June 20, 2015. Dr. D wrote the

death discharge on June 20, 2015, summarizing the details of her admittance,

surgery, and treatment.

[6] On June 16, 2017, Rogers filed a Proposed Complaint for damages under the

Medical Malpractice Act with the Indiana Department of Insurance stemming

from the medical treatment and death of Williams. Rogers alleged that the care

and treatment Williams received from Dr. D during the surgical procedure and

post-operative follow-up were substandard and caused her death.

Subsequently, Rogers made her submission to the Medical Review Panel,

setting forth with specificity the dates on which the alleged medical malpractice

by Dr. D occurred.

[7] On June 24, 2019, before the medical review panel issued its determination, Dr.

D filed a Petition for Preliminary Determination of Law with the trial court and

moved for summary judgment, asserting that Williams’ Proposed Complaint

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 was barred by the two-year statute of limitations. On August 27, 2019,

Williams filed a reply in opposition to the motion for summary judgment. On

January 3, 2020, following a hearing, the trial court granted summary judgment

to Dr. D, concluding that, as a matter of law, Rogers’ claims were time-barred

by the two year statute of limitations under the Medical Malpractice Act.

[8] Rogers now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION
I. Standard of Review

[9] In reviewing a trial court’s ruling on summary judgment, this court stands in the

shoes of the trial court, applying the same standards in deciding whether to

affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

must determine whether there is a genuine issue of material fact and whether

the trial court has correctly applied the law. Id. at 607-08. In doing so, we

consider all of the designated evidence in the light most favorable to the non-

moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if

it helps to prove or disprove an essential element of the plaintiff’s cause of

action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an

opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.

Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant

of summary judgment has the burden of persuading this court that the trial

court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.

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[10] We observe that, in the present case, the trial court entered findings of fact and

conclusions of law thereon in support of its judgment. Generally, special

findings are not required in summary judgment proceedings and are not binding

on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48

(Ind. Ct. App. 2004). However, such findings offer a court valuable insight into

the trial court’s rationale and facilitate appellate review. Id.

II. Analysis

[11] Rogers contends that the trial court erred in granting summary judgment to Dr

D based on the application of the statute of limitations under the Medical

Malpractice Act. 1 Because Dr. D was Williams’ attending physician from

Williams’ admittance to the hospital on May 18, 2015 through her passing on

June 20, 2015, and engaged in an entire course of alleged negligent conduct

during this period, Rogers maintains that the doctrine of continuing wrong

applies, resulting in a timely filing of the proposed complaint.

A. Statute of Limitations

[12] The Medical Malpractice Act’s statute of limitations is located in Indiana Code

section 34-18-7-1(b), which provides, in pertinent part, that:

1
Typically, a proposed medical malpractice complaint must first be filed with the Department of Insurance
for review by a medical panel prior to filing the complaint in court. See I.C. § 34-18-10-1. However, I.C. §
34-18-11-1(a) creates an exception that a court, as here, can acquire jurisdiction over the subject matter and
the parties to the proposed complaint to make a preliminary determination of an affirmative defense.

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 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[.]

Accordingly, the Act institutes an occurrence-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.” Houser v. Kaufman, 972 N.E.2d 927, 933 (Ind. Ct. App.

2012), trans. denied.

[I]n determining whether a medical malpractice claim has been
commenced within the medical malpractice statute of limitations,
the discovery or trigger date is the point when a claimant either
knows of the malpractice and resulting injury, or learns of facts
that, in the exercise of reasonable diligence, should lead to the
discovery of the malpractice and the resulting injury . . . The
issue to be determined is the point at which a particular claimant
either knew of the malpractice and the resulting injury, or learned
facts that would have led a person of reasonable diligence to have
discovered the malpractice and resulting injury. If this date is
less than two years after the occurrence of the alleged
malpractice, the statute of limitations bars the claim unless it is
not reasonably possible for the claimant to present the claim in
the remaining time, in which case the claimant must do so within
a reasonable time after the discovery or trigger date. If such date
is more than two years after the occurrence of the malpractice,
the claimant has two years within which to commence the
action.

David v. Kleckner, 9 N.E.3d 147, 152-53 (Ind. 2014) (citation omitted). “When a

defendant in a medical malpractice asserts the statute of limitations as an

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 affirmative defense, the defendant bears the burden of establishing that the

action was commenced outside the statutory period.” Manley v. Sherer, 992

N.E.2d 670, 674 (Ind. 2013).

[13] The designated evidence reflects that, in her submission of evidence to the

medical review panel, Rogers identified Dr. D’s alleged negligent conduct as

follows:

A. Dr. D should not have scheduled Williams for a revision
surgery given her recent cancer treatment;

B. Dr. D should not have scheduled Williams for a hip revision
surgery absent convincing evidence that a loosening prosthesis
was her problem;

C. Dr. D should have, at the least, had an internist clear
Williams for surgery or he should have done so himself, in
order to determine that she was a good surgical candidate;

D. Dr. D should have terminated the revision and closed when it
became manifest that Williams’ prosthesis was not loosening
but was in fact firmly fixed;

E. Dr. D should have had Williams followed by the hospitalist
post-op; and

F. Dr. D should have recognized that Williams’ medical
condition had deteriorated to the point that he was not able to
manage her medically.

(Appellant’s App. Vol. II, pp. 28-31).

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[14] The act of malpractice, as alleged in the Proposed Complaint, is focused on Dr.

D’s revision surgery; without the surgery and subsequent post-operative

treatment, Williams might not have passed away. As such, May 18, 2015, is

the occurrence date. However, by May 27, 2015, i.e., the failed discharge date,

Williams had sufficient information that would have led a reasonably diligent

person to believe a medical mistake might have been made as a nurse tending to

Williams requested a further consultation because of Williams’ complaints of

persistent hypertension, clumsiness, and cold limbs. “A plaintiff does not need

to be told malpractice occurred to trigger the statute of limitations.” Brinkman

v. Beuter, 879 N.E.2d 549, 555 (Ind. 2008). Thus, with an alleged act of

malpractice occurring on May 18, 2015, and a trigger or discovery date of May

27, 2015, Rogers had sufficient information that would have led a reasonably

diligent person to the discovery of malpractice during the remaining 1 year, 11

months, and approximately 3 weeks of the two-year statute of limitations

period. As Rogers filed her Proposed Complaint on June 16, 2017, her action is

barred by the statute of limitations.

B. Continuing Wrong Doctrine

[15] In an effort to save her claim from being tolled, Rogers relies on the continuing

wrong doctrine by maintaining that Dr. D’s entire course of treatment as

Williams’ attending physician, from her admittance to the hospital until her

passing on June 20,1015, culminated into the resulting injury.

The doctrine of continuing wrong applies where an entire course of
conduct combines to produce an injury. When this doctrine attaches,
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 the statutory limitations period begins to run at the end of the
continuing wrong act. In order to apply the doctrine, the plaintiff
must demonstrate that the alleged injury-producing conduct was of a
continuous nature. The doctrine of continuing wrong is not an
equitable doctrine, rather, it defines when an act, omission, or
neglect took place.

Gradus-Pizlo v. Acton, 964 N.E.2d 865, 871 (Ind. Ct. App. 2012) (emphasis

added) (citations omitted). For the doctrine to apply, the physician’s conduct

must be more than a single act. See id.

[16] In Garneau v. Bush, 838 N.E.2d 1134, 1146 (Ind. Ct. App. 2005), trans. denied,

relied upon by Rogers, we reversed the trial court’s grant of summary judgment

in favor of the doctor. The patient in Garneau had her hip replaced on March

17, 1998, with an obsolete prosthesis. Id. at 1138. After the replacement, the

patient experienced pain and dislocated her new prosthesis twice. Id. Instead

of recommending revisions, the doctors treated the patient by prescribing pain

medication, ordering x-rays, evaluation, and physical therapy for more than six

months before the patient ultimately had to have a different prosthesis installed

on November 8, 1999. Id. at 1139. The patient filed a complaint for

malpractice on August 28, 2000, and the trial court considered it untimely and

granted summary judgment to the doctor. Id. On review, we first held that the

initial act of malpractice occurred on March 17, 1998, the day the obsolete

prosthesis was installed. Id. However, the patient asserted that the doctrine of

continuing wrong should apply, because the doctor’s negligent treatment was

continuous until November 8, 1999, thus tolling the commencement of the

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 statute of limitations. Id. at 1143-46. We held that under these facts and

circumstances, the patient had established a genuine issue of material fact as to

whether the doctor’s installation of an obsolete prosthesis, followed by

continuous treatment with pain medication and failure to recommend revision

at any point during six months or more following the surgery, constituted a

continuing wrong. Id. at 1145.

[17] On the other hand, in Anonymous Dr. A v. Foreman, 127 N.E.3d 1273, 1276 (Ind.

Ct. App. 2019), a patient instituted a medical malpractice action against a

physician, alleging that the physician surgically repaired the patient’s hip

fracture by inserting a femoral rod into the patient’s femur which he negligently

placed and which resulted in the rod’s fracture. The procedure occurred on

November 25, 2015, with the patient commencing an action on January 19,

2018. Id. After the trial court denied the physician’s motion for summary

judgment, this court reversed, concluding that the claims were barred by the

statute of limitations. Id. at 1279. We reached this conclusion by holding that

the misplacement of the femoral rod during surgery was an isolated event, not

conduct of a continuing nature. Id. at 1278. We noted that the physician’s

monitoring of the patient before and after the revision surgery did not set forth

any facts indicating that the physician’s conduct after inserting the femoral rod

amounted to malpractice. Id.

[18] Here, like in Foreman, Dr. D’s decision to schedule the surgery and his

corresponding decision not to terminate it were isolated events and not conduct

of a continuing nature. Likewise, his decision not to consult an internist to

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 obtain a medical clearance examination before surgery, identified as presumed

negligent in the Proposed Complaint, was an isolated event as it can be seen

independent and distinct from the surgery itself. 2 Rogers designated no

evidence in her Proposed Complaint that any treatment decisions made by Dr.

D after the surgery aggravated the injury. Thus, distinguished from Garneau,

while Dr. D monitored Williams before and after the surgery, Rogers fails to

put forth any specific facts to establish that Dr. D.’s conduct after the revision

surgery amounted to malpractice.

[19] In an effort to fit her claim within the premise of Garneau, Rogers contends that

we have to focus on Dr. D’s overall relationship with Williams as her attending

physician, who provided continuous care from the date of admittance until her

death. However, we remind Rogers that “Indiana courts understand the

[Medical Malpractice Act] to cover curative or salutary conduct of a health care

provider acting within his or her professional capacity.” Howard Reg’l Health

Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011) (emphasis added). In this light,

the Act defines malpractice as “a tort or breach of contract based on health care

or professional services that were provided, or should have been provided by a

health care provider, to a patient.” I.C § 34-18-2-18. Accordingly, the medical

malpractice act punishes negligent conduct or care provided to a patient by a

healthcare provider, regardless of the specific ongoing relationship between

2
Even if Dr. D’s decision not to consult an internist can be characterized as conduct of a continuing nature,
this event terminated on May 27, 2015 with the issuance of Dr. D’s Final Progress Note, and therefore, with
a filing date of June 16, 2017, the claim would still be barred under the statute of limitations.

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 them. Absent an explicit allegation of negligent treatment, Dr. D cannot be

held responsible based solely on the nature of his relationship as attending

physician to Williams.

[20] Accordingly, as we conclude that Dr. D’s act of negligence occurred on May

18, 2015, and that the doctrine of continuing wrong does not apply, Rogers’

claim is barred by the Medical Malpractice Act’s occurrence-based statute of

limitations.

CONCLUSION
[21] Based on the foregoing, we hold that, as a matter of law, Rogers’ claims,

brought under the Medical Malpractice Act, are barred by the statute of

limitations.

[22] Affirmed.

[23] Mathias, J. and Tavitas, J. concur

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