dissenting.
Determining whether or not the statute of limitations has run in a malpractice ac-, tion is a delicate matter, particularly fact sensitive, and one which has caused great anguish to the courts. In making such decisions, the courts have had to wrestle with the question of whether the statute of limitations is an occurrence statute, a damage statute, or a discovery statute. See generally, Note, Drafting Attorneys Liability To Intended Beneficiaries of a Will: A Reasonable Approach To Accrual of Statutes of Limitations 18 Val.U.L.Rev. 119, 130-89 (1984). That is, is the triggering event which sets into motion the statute of limitations the act of malpractice, the infliction of damage, or the discovery of the malpractice by the victim? And, are there any exceptions or circumstances which might, in a given case, extend the period of limitation?
In the area of medical malpractice, because of the peculiar wording of the separate medical malpractice statute of limitations, (Ind. Code see. 16-9.5-3-1 under the current medical malpractice act, and Ind. Code see. 34-4-19-1 the prior statute), our courts have held the statute of limitations to be an occurrence statute. Hepp v. Pierce (1984), Ind.App., 460 N.E.2d 186; Colbert v. Waitt (1982), Ind.App., 445 N.E.2d 1000; Alwood v. Davis (1980), Ind.App., 411 N.E.2d 759, trans. denied. However, as we pointed out in our decision in Nahmias v. Trustees of Indiana University (1983), Ind.App., 444 N.E.2d 1204, trams. denied, "discovery" language has been employed in construing the 1941 act (Ind. Code see. 84-4-19-1). Thus, in Snyder v. Tell City Clinic (1979), 181 Ind.App. 188, 195, 391 N.E.2d 623, 628, Judge Lybrook stated that the malpractice statute of limitations does not deprive a patient of a remedy if he did not know and could not have known of his claim within two years of the initial act, omission, or neglect. However, in Toth v. Lenk (1975), 164 Ind.App. 618, 330 N.E.2d 336, the case relied on in Snyder, Judge Garrard writing for the majority stated that the legislature did not intend actual discovery to be the event which triggers the commencement of the statutory period.
Thus, the current state of the law in this state seems to be that, at least insofar as medical malpractice cases are concerned, the statute of limitations is an occurrence rule statute.1 However, it is clear that fraudulent concealment will toll the running of the statute of limitations in medical malpractice actions. Guy v. Schuldt (1956), 236 Ind. 101, 188 N.E.2d 891; Conard v. Waugh (1985), Ind.App., 474 N.E.2d 180; Spoljaric v. Pangan (1984), Ind.App., 466 N.E.2d 37. Fraudulent concealment ceases to toll the statute of limitations when the confidential relationship between the physician and the patient is terminated. Conrad, 474 N.E.2d 185; Spoljaric, 466 N.E.2d at 40; Colbert, 445 N.E.2d at 1003. If the patient learns of the malpractice or learns information which would lead to the discovery of the malpractice if the patient exercised diligence to discover, the statute of limitations will com-menee to run. Spoljaric, 466 N.E.2d at 40; Hepp, 460 N.E.2d at 190; Nahmias, 444 N.E.2d at 1209.
These medical malpractice cases have been reviewed because of the similarity of the issues in medical malpractice and legal malpractice. In addition, the medical malpractice cases are oft-cited in the lawyer malpractice cases regarding the running of the statute of limitations. See, eg., Keystone Distribution Park v. Kennerk, Dumas, Burke, Backs, Long and Salin (1984), Ind.App., 461 N.E.2d 749; Whitehouse v. Quinn (1982), Ind.App., 443 N.E.2d 332, reversed on other grounds, Ind., 477 N.E.2d 270 (1985). This court in Whitehouse, relying upon Guy v. Schuldt, held that fraudulent concealment tolled the running of the statute of limitations in *634lawyer malpractice cases. In reversing, our supreme court in Whitehouse, found this court erred in determining that the twenty year statute of limitations was applicable. 477 N.E.2d at 274. However, the supreme court did not disturb this court's decision that the doctrine of fraudulent concealment announced in Guy was applicable to lawyer malpractice cases. In fact, the supreme court tacitly recognized that view when it said, "[We do agree with the Court of Appeals that the statute of limitations ... was not tolled based on White-house's rationale that Quinn's failure to advise Whitehouse of the release constitut ed fraudulent concealment ..." Whitehouse, 477 N.E.2d at 272. The supreme court simply agreed that the facts did not establish fraudulent concealment.
Unlike medical malpractice, there is no specific statute of limitations applicable only to lawyer malpractice cases. Instead, lawyer malpractice cases are governed by the general two year statute of limitations applicable to actions for injuries to person or character or for injuries to personal property, Ind. Code see. 34-1-2-2. Whitehouse, 477 N.E.2d at 274; Shideler v. Dwyer (1981), 275 Ind. 270, 281, 417 N.E.2d 281, 288; Keystone Distribution Park, 461 N.E.2d at 751. The question then becomes one of determining the event which starts the statute of limitations running. In Shideler, our supreme court held the triggering event in regard to a claim of malpractice for negligent preparation of a will was the death of the testator.2 Following the decision in Shideler, this court held that as to a claim for lawyer malpractice concerning an economic development bond issue, the statute of limitations commenced running when construction began. Keystone, 461 N.E.2d at 751. Here, however, it is unnecessary to pursue the question of when the statute was triggered. Lam-berts, in their appellants' brief, concede the statute of limitations on their malpractice claim commenced running on January 20, 1980, when Kesler and Stark filed a petition with the bankruptey court seeking discharge of Lamberts' debts. Appellants' brief at 6.3 They seek to avoid the consequences of their delay in filing their complaint until February 27, 1984, on the ground of fraudulent concealment thus tolling the statute of limitations.
Granting of summary judgment in this case was proper only if there was no genuine issue of fact as to fraudulent concealment. Summary judgment is not appropriate when the information before the court reveals a good faith dispute as to the inferences to be drawn from the facts. Spoljaric, 466 N.E.2d at 41. In my view, although Lamberts' affidavits opposing summary judgment leave much to be desired, from these affidavits and the record itself, inferences supporting genuine issues can be made.
Kesler and Stark continued to represent Lamberts in the bankruptcy proceeding and actively opposed the petition to deny discharge. That representation continued up to the order of March 19, 1982, denying discharge because of fraudulent transfers of property allegedly advised by Kesler and Stark. Although Kesler and Stark claim to have advised Lamberts of the petition to deny discharge, an inference could be drawn from the fact of their continued representation opposing the petition to deny discharge, that they were concealing their original malpractice. In fact, Lam-*635berts' affidavits state that they had no knowledge of the malpractice and the effect of the erroneous advice to make the transfers until the bankruptcy court denied discharge. Whether Kesler and Stark's disclosure of the petition to deny discharge was factually sufficient to create an obligation upon the part of the Lamberts to investigate whether they had been the victims of lawyer malpractice and whether they used due diligence to discover it, are also factual issues to be resolved by the trier upon full adversarial trial, and not upon summary judgment.
Therefore, I dissent. I would reverse and remand for trial on the merits wherein the issue of fraudulent concealment as tolling the statute of limitations can be fully litigated.
. In Alwood v. Davis (1980), Ind.App., 411 N.E.2d 759, trans. denied, while holding the statute to be an occurrence rule statute, the court expressed some concern regarding "the questionable constitutionality of the occurrence rule" and indicated that in a future case, the statute might have to be construed as a discovery rule statute.
. But see the dissenting opinion of Chief Justice Givan, in which Justice Pivarnik concurred, wherein it was stated that plaintiff could not have known that the particular clause was ineffective until the court declared it void. Thus, the dissenters, although recognizing that the majority of jurisdictions hold that the statute of limitations for lawyer malpractice begins to run on the day the negligent act occurred, would opt for a discovery rule. The dissent states the statute of limitations should not have been deemed to commence running until the will provision was declared void. If this view were followed, the statute here would not have started running until the entry of the order denying discharge in bankruptcy.
. In view of this concession, it is not necessary in this case to determine when the statute started to run, or the correctness of the concession, but only whether a genuine issue was raised as to fraudulent concealment.