Brinkman v. Bueter

VAIDIK, Judge,

dissenting.

I respectfully dissent from the majority's conclusion that the trial court erred in granting summary judgment in favor of the Physicians on three of the four issues raised in the Brinkmans' complaint. Specifically, I do not believe that Indiana's occurrence-based two-year statute of limitations for medical malpractice actions is unconstitutional as applied to the Brink-mans. Rather, I believe that the Brink mans possessed enough information that would have led a reasonably diligent person to discover the alleged malpractice and resulting injury within two years following the occurrence of the alleged malpractice. Therefore, I would affirm the trial court's grant of summary judgment in favor of the *1243Physicians on these issues. I also respectfully dissent from the majority's conclusion that the trial court properly denied summary judgment on the fourth issue raised in the Brinkmans' complaint. Specifically, I believe that the Brinkmans have not established that the Physicians concealed material information that somehow prevented them from inquiring into or investigating Sandra's condition, thus preventing them from discovering a potential cause of action. Therefore, I would reverse the trial court's denial of summary judgment on this issue.

In their complaint, the Brinkmans alleged that the Physicians committed malpractice by failing to diagnose and treat Sandra's pre-eclampsia and eclampsia. These events all occurred in January 1995. However, the Brinkmans did not file their complaint against the Physicians until December 2000. The Brinkmans argue that they did not discover there was a reasonable probability that the Physicians caused a specific injury to Sandra in their provision of care in 1995 until meeting with another doctor in January 2000, who advised the Brinkmans that Sandra's medical records showed that she had symptoms of pre-eclampsia prior to giving birth in 1995 and that if she had received proper care for pre-eclampsia, it would not have progressed into toxic eclampsia. The Physi-clans respond that the Brinkmans possessed sufficient information to discover that an act of malpractice occurred when Sandra was accurately diagnosed with ec-lampsia on January 30, 1995. As such, the Physicians assert that January 30, 1995, is the date that the statute of limitations began to run.

It is undisputed that "a plaintiff need not know with certainty that malpractice caused his injury, to trigger the running of the statutory time period." Booth v. Wiley, 889 N.E.2d 1168, 1171 (Ind.2005) (quotation omitted). Our Supreme Court has provided the following guidance for determining when the statutory time period begins to run:

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.

Id. at 1172 (emphasis added).

The majority concludes that the Brink mans' ability to discover information supporting a malpractice claim prior to meeting with the doctor in 2000 is "impracticable." Slip op. at 14. I disagree. On January 22, 1995, Sandra, eight months pregnant, was hospitalized with complaints of a severe headache that had persisted for a few days, gastric pain, and vomiting. Her blood pressure was high and her urine contained trace protein. Sandra, still hospitalized, gave birth on January 26, 1995. On January 27, 1995, Sandra was released from the hospital with high blood pressure despite a neurologist's advice that she remain in the hospital until her blood pressure stabilized. After being released from the hospital, Sandra again experienced a se*1244vere headache and contacted the Physicians. Because Sandra was no longer an obstetrical patient, Sandra was referred to a family physician, and that doctor treated her for pain and nausea on January 30, 1995, and sent her home. Later that afternoon, Sandra experienced a grand mal seizure and was taken by ambulance to the hospital, where she experienced another seizure. She was admitted to the hospital with a diagnosis of toxic eclampsia. Sandra remained in the hospital under treatment for eclampsia until February 4, 1995.

I believe that 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-is January 30, 1995, the date Sandra was accurately diagnosed with eclampsia. The Brinkmans possessed enough information on that date to let them know that Sandra had a severe complication that had been negligently left untreated until she experienced two grand mal seizures and finally received a proper diagnosis of eclampsia. This case is wholly unlike the Supreme Court's cases in Martin v. Richey, 711 N.E.2d 1273 (Ind.1999), and Van Dusen v. Stotts, 712 N.E.2d 491 (Ind.1999), where the plaintiffs suffered from latent diseases and did not have any symptoms that would have put them on notice that malpractice might have occurred.9 See Battema v. Booth, 853 N.E.2d 1014, 1019 (Ind.Ct.App.2006), trans. pending. Despite Sandra's symptoms and efforts to let the Physicians know that something was wrong with her, Sandra was released from the hospital only then to suffer two grand mal seizures. Based on these facts, I conclude that the Brinkmans possessed enough information within two years after Sandra's diagnosis of eclampsia on January 30, 1995, to lead a reasonably diligent person to conclude that malpractice had occurred. Therefore, I would affirm the trial court on the issues related to the Physicians' failure to diagnose and treat Sandra's pre-eclampsia and eclampsia.

In their complaint, G to appropriately counsel them about the potential risks and complications relating to future pregnancies at Sandra's post-partum appointment on March 10, 1995, with Dr. Bueter.10 Specifically, the Brinkmans argue that the Physicians engaged in active, fraudulent concealment at this appointment, thereby tolling the statute of limitations. At Sandra's post-partum appointment, Dr. Bueter discussed Sandra's eclampsia with the Brinkmans. Dr. Bueter also told the Brinkmans that while she was hospitalized before giving birth, the Physicians had been checking her for signs and symptoms of pre-eclampsia but she did not appear to have any. Nevertheless, the Brinkmans assert that Dr. Bueter then told them things, such as not to have any more children, "to ensure that [they] would never learn about the malpractice." Appellants' Br. p. 28. However, this assertion ignores the fact that Sandra, who had symptoms of a severe complication, was sent home from the hospital and experienced two grand *1245mal seizures, at which point she was accurately diagnosed with eclampsia. To successfully invoke the doctrine of fraudulent concealment, the Brinkmans must establish that Dr. Bueter's concealment of material information somehow prevented them from inquiring into or investigating Sandra's condition, thus preventing them from discovering a potential cause of action. See Garneau v. Bush, 838 N.E.2d 1134, 1148 (Ind.Ct.App.2005), trans. denied. Here, because it is undisputed that Sandra was accurately diagnosed with eclampsia, the record lacks such uncontroverted evidence. Accordingly, I believe that the doctrine of fraudulent concealment does not operate to toll the statute of limitations. Accordingly, the statute of limitation on any claim arising from the postpartum appointment on March 10, 1995, began to run on that date, which is also the date that the physician-patient relationship ended. And because the Brinkmans filed their complaint in December 2000, like the claims above, such a claim is time-barred. Therefore, I would reverse the trial court on this issue and enter summary judgment in favor of Dr. Bueter and WHP.

. In their brief, the Brinkmans rely on Booth v. Wiley. However, that case is distinguishable from the present case because Booth had cataracts and glaucoma before the LASIK surgery and factual questions existed as to whether the doctor attributed Booth's symptoms to causes unrelated to the LASIK surgery. See Booth, 839 N.E.2d at 1175. These facts are not present here.

. In its summary judgment order, the trial court denied summary judgment on this issue as it related to Dr. Bueter and WHP. The trial court presumably granted summary judgment on this issue in favor of Dr. Dupler because he was not present at Sandra's March 10, 1995, post-partum appointment.