Boggs v. Tri-State Radiology, Inc.

ATTORNEY FOR APPELLANT

Mary Beth Ramey
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Douglas V. Jessen
Evansville, Indiana

Karl Mulvaney
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

R.C. BOGGS, Individually and on )
behalf of CAROLYN BOGGS, )
Deceased, )
) Indiana Supreme Court
Appellant (Plaintiff Below), ) Cause No. 82S04-0002-CV-115
)
v. ) Indiana Court of Appeals
) Cause No. 82A04-9809-CV-450
TRI-STATE RADIOLOGY, INC., )
)
Appellee (Defendant Below). )
__________________________________________________________________

APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Terry D. Dietsch, Judge
Cause No. 82D03-9710-CP-3553
__________________________________________________________________

ON PETITION TO TRANSFER

__________________________________________________________________

June 28, 2000

BOEHM, Justice.
We hold that the Indiana Constitution is not violated by application
of the Medical Malpractice Act’s two-year limitations period to bar a claim
that was discovered several months before the limitations period expired
and well within two years of its occurrence.
Factual and Procedural Background
In July 1991 Carolyn Boggs went to Doctor Robert H. Oswald after
detecting a mass in her left breast. A mammogram was taken and Carolyn was
instructed to return after one year. On July 28, 1992, a second mammogram
was taken, and, based on a comparison with the first, an excisional biopsy
was recommended. Both mammograms were taken by Oswald’s office and
interpreted by physicians at Tri-State Radiology. The biopsy took place on
August 12, 1992, and revealed that the mass in Carolyn’s left breast was
malignant. Subsequently it was discovered that the cancer had metastasized
to her liver and that her breast cancer was in Stage IV. Carolyn died on
July 28, 1993. On July 1, 1994, Carolyn’s husband, R.C. Boggs, filed a
proposed medical malpractice complaint pursuant to the Medical Malpractice
Act against Oswald and Tri-State.[1] He alleged that “[a]s a direct and
proximate result of the carelessness and negligence of [Tri-State], . . .
[Carolyn’s] malignancy metastasized and by the time it was discovered, it
was incurable.”
Tri-State filed a motion for preliminary determination of its statute
of limitations defense. This is a procedure unique to Medical Malpractice
Act claims that permits the trial court to assume jurisdiction over
threshold issues before the Medical Review Panel has acted. See Ind. Code
§ 34-18-11-1 (1998). Tri-State designated Boggs’ complaint and the
affidavit of the Tri-State doctor, which established the dates of Carolyn’s
treatment. Boggs designated only his complaint, but contended that there
were material issues of fact as to which discovery was needed and that the
Medical Malpractice Act’s two-year limitations period was unconstitutional.
The trial court properly treated this motion as governed by the summary
judgment standard of Trial Rule 56. Finding no issue of material fact, the
trial court entered judgment in Tri-State’s favor on May 21, 1998. The
Court of Appeals reversed, holding the medical malpractice statute of
limitations unconstitutional as applied to Boggs. See Boggs v. Tri-State
Radiology, Inc., 716 N.E.2d 45, 51 (Ind. Ct. App. 1999).
This appeal raises the following issues: (1) Was the Court of Appeals
correct in concluding that the statute of limitations was unconstitutional
as applied to Boggs? (2) If not, does either fraudulent concealment or
continuing wrong operate to toll the statute of limitations?
Standard of Review
The entry of summary judgment on a motion for a preliminary
determination is subject to the same standard of appellate review as any
other entry of summary judgment. See, e.g., Havens v. Ritchey, 582 N.E.2d
792, 795 (Ind. 1991). The standard of appellate review of a summary
judgment ruling is the same as that used in the trial court: summary
judgment is appropriate only where the evidence shows that there is no
genuine issue of material fact and that the moving party is entitled to a
judgment as a matter of law. Ind. Trial Rule 56(C); Shell Oil Co. v.
Lovold Co., 705 N.E.2d 981, 983-84 (Ind. 1998). All facts and reasonable
inferences drawn from those facts are construed in favor of the nonmoving
party. Shell Oil, 705 N.E.2d at 983-84. When the moving party asserts the
statute of limitations as an affirmative defense, however, and establishes
that the action was commenced beyond the statutory period, the burden
shifts to the nonmovant to establish an issue of fact material to a theory
that avoids the defense. Conard v. Waugh, 474 N.E.2d 130, 134-35 (Ind. Ct.
App. 1985). Here, Boggs seeks to avoid the defense by arguing that the
statute of limitations is unconstitutional as applied to him and also by
asserting that material factual disputes remain that bear on the doctrines
of fraudulent concealment and continuing wrong.
I. Statute of Limitations
In Martin v. Richey, 711 N.E.2d 1273, 1284-85 (Ind. 1999), and Van
Dusen v. Stotts, 712 N.E.2d 491, 493 (Ind. 1999), this Court held that the
medical malpractice statute of limitations was unconstitutional as applied
to the plaintiffs because they were barred from pursuing an otherwise valid
medical malpractice claim before they had reason to know of that claim. We
concluded that barring their claims violated Article I, Section 12, the
Open Courts Clause, and Article I, Section 23, the Equal Privileges and
Immunities Clause of the Indiana Constitution. We held that under both
constitutional provisions the statute of limitations was unconstitutional
where a plaintiff, in the exercise of reasonable diligence, could not have
discovered the injury before the expiration of the limitations period. See
Martin, 711 N.E.2d at 1282, 1284-85; Van Dusen, 712 N.E.2d at 493. In Van
Dusen, we held that under those circumstances plaintiffs would be allotted
the full two-year statutory period to file a claim, running from the time
“they discover the malpractice and the resulting injury or facts that, in
the exercise of reasonable diligence, should lead to the discovery of the
malpractice and the resulting injury.” 712 N.E.2d at 493.
Here, however, Carolyn became aware of her injury eleven months
before the statute of limitations expired. Thus, she or Boggs could have
filed a claim within the two-year limitations period prescribed by the
Medical Malpractice Act, but did not. By its terms, the two-year statute
bars Boggs’ claim. He thus presents the issue whether the statute of
limitations is unconstitutional as applied to plaintiffs who cannot
reasonably be expected to learn of their injuries at the time of the
alleged occurrence of malpractice, but do, or should, become aware of their
injuries well before the end of the limitations period.
A. Article I, Section 12
The Court of Appeals held that the statute of limitations as applied
to Boggs did not violate Article I, Section 12 because he was not denied a
meaningful opportunity to pursue his malpractice claim. Boggs argued that
the limitations period often operates as a practical bar by forcing medical
malpractice victims who suffer from terminal conditions to commence
litigation and simultaneously battle for their lives. There is no doubt
some force to Boggs’ point. But it is equally plain that nothing prevented
him or Carolyn from initiating litigation within the statutory period or
attempting to secure a waiver of the limitations period. The legislature
has chosen the benefits of certainty over the burdens that may be imposed
on still suffering families by a requirement that litigation be filed
promptly. This scheme raises no inherent bar to a remedy and leaves our
courts open to entertain the claim. Accordingly, it is a constitutional
exercise of the balancing of interests that legislatures are called upon to
do. The Court of Appeals correctly concluded that Article I, Section 12 is
not violated by the application of the statute of limitations to bar Boggs’
claim.
B. Article I, Section 23
Although the Court of Appeals found no Article I, Section 12
violation, it concluded that barring Boggs from proceeding with his claim
did violate Article I, Section 23 because it granted to some a privilege
denied to others similarly situated and therefore created a classification
that failed the second prong of Collins v. Day, 644 N.E.2d 72, 80 (Ind.
1994). See Boggs, 716 N.E.2d at 50. The Court of Appeals pointed out that
some plaintiffs, like Boggs, have less than the full two-year statutory
period to file their claims, but others have the full two years. As the
Court of Appeals noted, under Martin et al., the plaintiff who discovers
his or her claim the day after the statutory period expires may pursue the
claim, but the statute would purport to bar the plaintiff who discovers the
malpractice the day before the statutory period expires. See id. The
Court of Appeals reasoned that these two plaintiffs are for all practical
purposes identically situated, and yet one has hours, minutes, or seconds
within which to file a claim, and the other has two years. This was found
to be an impermissible classification. Further, the court reasoned, Boggs
is situated similarly to the plaintiffs in Martin and Van Dusen, in that
they were also unable to discover the malpractice on the day it occurred,
and both were allowed two years from discovery to file their claims.
We do not agree that the statute of limitations as applied to Boggs
violates Article I, Section 23. In Collins, this Court enunciated a two-
part test for determining whether a statute granting unequal privileges or
immunities to differing classes of persons passes constitutional muster
under Article I, Section 23: “First, the disparate treatment accorded by
the legislation must be reasonably related to inherent characteristics
which distinguish the unequally treated classes. Second, the preferential
treatment must be uniformly applicable and equally available to all persons
similarly situated.” 644 N.E.2d at 80. In applying this test, we exercise
“substantial deference” to the legislature. Id.
As the Court of Appeals noted, and Martin reaffirmed, a
classification scheme resulting in different treatment for medical
malpractice plaintiffs as compared to other tort victims satisfies the
first prong of Collins. See Martin, 711 N.E.2d at 1280-81. The only
issue remaining is whether the classes defined by discovery of the claims
at different times in relation to the alleged occurrence of malpractice
pass constitutional muster under the second prong of Collins.
Specifically, the issue presented by Boggs’ complaint is whether the
statute of limitations is constitutional as applied to patients who
discover the malpractice well before the expiration of the limitations
period, but some time after the act of malpractice. We conclude that it
is.
This Court has already resolved the constitutionality of an occurrence-
based medical malpractice statute of limitations. See Martin, 711 N.E.2d
at 1279 (citing Rohrabaugh v. Wagoner, 274 Ind. 661, 413 N.E.2d 891 (1980);
Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 404 N.E.2d 585 (1980)).
The plaintiff may or may not be immediately aware of an injury from an act
of malpractice and also may or may not be aware that the injury was
attributable to an act or omission by a health care provider. Unless a
plaintiff is immediately aware of both, there will be a lag between the
occurrence and the discovery of the claim. Thus, medical malpractice
plaintiffs will frequently, if not virtually always, have varying amounts
of time within which to file their claims before an occurrence-based
statute of limitations expires. But that difference in time to file is not
sufficient to create an impermissible classification under Article I,
Section 23. All statutes of limitations are to some degree arbitrary. The
logic of the Court of Appeals would render every statute of limitations or
repose a discovery-based statute as a matter of constitutional law. This
would significantly undermine the fundamental objective of limitations
periods, which recognizes value in the certainty generated by a known date
after which a claim is either asserted or expires. Moreover, extending the
statute has a price. Memories fade and witnesses and physical and
documentary evidence can become unavailable over time. Martin subordinates
these considerations to the extent necessary to permit a claim to be
brought at all. Here, however, we are not facing the practical
impossibility of asserting the claim. Rather, Boggs or Carolyn could have
brought a claim within the statutory period. As long as the claim can
reasonably be asserted before the statute expires, the only burden imposed
upon the later discovering plaintiffs is that they have less time to make
up their minds to sue. The relatively minor burden of requiring a claimant
to act within the same time period from the date of occurrence, but with
less time to decide to sue, is far less severe than barring the claim
altogether.
The Court of Appeals concluded that Boggs was “similarly situated” to
the plaintiffs in Martin and Van Dusen because the Boggs, like those
plaintiffs, could not have discovered the alleged acts of malpractice when
they occurred. See Boggs, 716 N.E.2d at 50. Boggs is similar to the
plaintiffs in Martin and Van Dusen in that respect, but quite different in
another. Boggs or Carolyn had an 11-month window to file a medical
malpractice claim after knowledge of the injury, yet did not. We hold that
as long as the statute of limitations does not shorten this window of time
so unreasonably that it is impractical for a plaintiff to file a claim at
all, as it did in Martin and Van Dusen, it is constitutional as applied to
that plaintiff. The statute reflects a legislative judgment to define the
class who may proceed as those who discover their claim in time to file
within two years after the occurrence. That judgment is entitled to
deference, and permits all within the class, including Boggs, to bring
their case to court, if they choose to do so, within the statutory period.

The Court of Appeals notes the possibility of discovery a very short
time before the expiration of the limitations period. There may be
situations where, like Martin and Van Dusen, discovering and presenting the
claim within the time demanded by the statute is not reasonably possible.
If so, the statute as applied under those circumstances may run afoul of
the Indiana Constitution. But Boggs is not in that category. In the
future, this Court may be presented with facts that support a claim such as
the hypothetical eve of midnight discovery posited by the Court of Appeals.
For the moment, however, it remains a hypothetical. Indeed, the problem
of a last minute discovery is inherent in any statute of limitations that
may be tolled by concealment or related doctrines. It can best be
addressed on a case-by-case basis, and, at least in this state, has
apparently never arisen.
We are sympathetic to Boggs’ complaint that it would have been
difficult for him or Carolyn to file a claim while Carolyn was “fighting
for her life.” Indeed, seeking monetary compensation during such a time
may be the furthest thing from a patient’s mind.[2] However, given that
the statute of limitations for filing a medical malpractice claim is only
two years, presumably many victims of malpractice who discover their claims
immediately will also find it necessary to engage in litigation while
battling their medical condition, fatal or not. That is a decision the
legislature has made.
II. Fraudulent Concealment
The Court of Appeals concluded that Boggs could pursue his claim, and
therefore did not need to address the doctrines of fraudulent concealment
and continuing wrong. Because we disagree on the constitutional issue, we
address these contentions as well. Boggs alleges that genuine issues of
fact remain concerning whether the statute of limitations should be tolled
by the doctrine of fraudulent concealment. Under that doctrine, a person
is estopped from asserting the statute of limitations as a defense if that
person, by deception or violation of a duty, has concealed material facts
from the plaintiff and thereby prevented discovery of a wrong. Hughes v.
Glaese, 659 N.E.2d 516, 519 (Ind. 1995). If the concealment is active, it
is tolled until the patient discovers the malpractice, or in the exercise
of due diligence should discover it. If the concealment is constructive,
in this case by reason of an ongoing duty arising from the continuing
physician-patient relationship, the statute of limitations is tolled until
the termination of the physician-patient relationship, or, as in the active
concealment case, until discovery, whichever is earlier. See id.
Constructive concealment consists of the failure to disclose material
information to the patient. See id. Active concealment involves
affirmative acts of concealment intended to mislead or hinder the plaintiff
from obtaining information concerning the malpractice. See id. at 521
(quoting Keesling v. Baker & Daniels, 571 N.E.2d 562, 565 (Ind. Ct. App.
1991)). Under either strand of the doctrine, the patient must bring his or
her claim within a reasonable period of time after the statute of
limitations begins to run. See id. at 519.
Boggs alleges that the trial court erred in granting Tri-State’s
motion because discovery on the issue of fraudulent concealment was
incomplete. Tri-State responds that Boggs had ample time to conduct
relevant discovery prior to the hearing on the motion for a preliminary
determination on March 9, 1998. It is generally improper for a court to
grant summary judgment while reasonable discovery requests that bear on
issues material to the motion are still pending. See Mutual Sec. Life Ins.
Co. v. Fidelity & Deposit Co., 659 N.E.2d 1096, 1103 (Ind. Ct. App. 1996).
Boggs points to no discovery requests that were pending at the time of the
hearing. He nonetheless argues that discovery would resolve four factual
disputes. He identifies: (1) “[t]he duration of the physician/patient
relationship”; (2) what Tri-State’s radiologist knew when he made the July
1991 report; and (3) whether the period of time between Boggs’ knowledge of
the malpractice and the filing of the complaint was reasonable. He also
points to the possibility of an “agency relationship” between Carolyn’s
treating physician and Tri-State, without specifying whether he contends
Oswald was Tri-State’s agent or vice versa.
Even if discovery were to establish that the physician-patient
relationship between Tri-State and Carolyn did not terminate until August
12, 1992, that Tri-State was an agent of Carolyn’s treating physician, or
that Tri-State’s radiologist had information he should have disclosed to
Carolyn, the statute of limitations would not be tolled beyond August 12,
1992, the date of Carolyn’s biopsy and knowledge of facts that led to the
discovery of alleged malpractice. Thus, under any of these theories,
Carolyn would have only a reasonable time beyond August 1992 to file her
claim. As for the possible, but seemingly highly improbable, contention
that Oswald was an agent of Tri-State, Boggs does not contend that the
physician-patient relationship to Oswald extended beyond July 1992, and
does not plead any agency relationship. In August 1992, eleven months
remained under the occurrence-based statute of limitations. Boggs did not
file his proposed complaint until July 1994, 22 ½ months later. Boggs
asserts that the reasonableness of the delay should be determined by the
jury, but he acknowledges that there is no precedent for this proposition.
In response, Tri-State points to several cases where periods similar to or
shorter than 22 ½ months were held to be unreasonable as a matter of law.
See Cacdac v. Hiland, 561 N.E.2d 758, 758 (Ind. 1990) (22-month delay);
Cyrus v. Nero, 546 N.E.2d 328, 331 (Ind. Ct. App. 1989) (22-month delay);
Spoljaric v. Pangan, 466 N.E.2d 37, 43-44 (Ind. Ct. App. 1984) (14-month
delay).
Although this Court is sympathetic Boggs’ predicament, there is
nothing in the circumstances of this case to indicate that 22 ½ months was
a reasonable time to delay filing suit. The trial court correctly
concluded that the doctrine of fraudulent concealment did not bar Tri-State
from asserting the statute of limitations as a defense.
III. Continuing Wrong
Boggs also alleges that a question of material fact remains regarding
the application of the doctrine of continuing wrong. The doctrine of
continuing wrong is applicable where an entire course of conduct combines
to produce an injury. See Cyrus v. Nero, 546 N.E.2d 328, 331 (Ind. Ct.
App. 1989). The doctrine of continuing wrong is not an equitable doctrine;
rather, it defines when an act, omission, or neglect took place. Havens v.
Ritchey, 582 N.E.2d 792, 795 (Ind. 1991). When this doctrine attaches, the
statute of limitations does not begin to run until the wrongful act ceases,
and at that point the plaintiff may bring the claim within the normal
statutory period. See Cyrus, 546 N.E.2d at 331.
Boggs relies on Ferrell v. Geisler, 505 N.E.2d 137, 140 (Ind. Ct.
App. 1987), in which the Court of Appeals concluded that a question of fact
remained for the jury as to whether the patient’s physicians’ repeated
failure to diagnose her breast cancer constituted a continuing wrong. In
Ferrell, the plaintiff visited the defendants more than ten times over a
span of two years, first concerned about lumps in her breasts, and then
lumps under her arm. See id. at 138. Tri-State cites Cyrus for the
proposition that a single incident cannot form the basis of a claim under
the doctrine of continuing wrong. In Cyrus, the plaintiff became pregnant
after a failed sterilization. 546 N.E.2d at 331.
Boggs alleges that the application of this doctrine places a material
fact in issue because, “Tri-State interpreted, compared, and possessed both
the July 1991 and the July 1992 mammograms.” Because Tri-State’s actions
consisted solely of interpreting mammograms ordered and taken by Oswald’s
office at times selected by Oswald, this fact supports no continuing
physician-patient relationship between Carolyn and Tri-State. Cf. Babcock
v. Lafayette Home Hosp., 587 N.E.2d 1320, 1323 (Ind. Ct. App. 1992)
(leaving a surgical sponge in a patient and misreading a chest x-ray are
isolated events and do not together constitute a continuing wrong); Cyrus,
546 N.E.2d at 331. The trial court correctly concluded that the doctrine
of continuing wrong was inapplicable to Boggs.
Conclusion
We affirm the trial court.

SHEPARD, C.J., and DICKSON, J., concurs.
SULLIVAN, J., dissents with separate opinion in which RUCKER, J.,
concurs

Attorney for Appellants

Mary Beth Ramey
Ramey & Hailey
Indianapolis, Indiana

Attorneys for Appellee

Douglas V. Jessen
Statham & McCray
Evansville, Indiana

Karl Mulvaney
Bingham Summers Welsh & Spillman
Indianapolis, Indiana

IN THE
INDIANA SUPREME COURT

R.C. BOGGS, Individually and on
behalf of CAROLYNN BOGGS,
Deceased,
Appellant (Plaintiff below),

v.

TRI-STATE RADIOLOGY, INC.,
Appellee (Defendant below).

)
) Supreme Court No.
) 82S04-0002-CV-115
)
)
)
) Court of Appeals No.
) 82A04-9809-CV-450
)
)
)
)
)

APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Terry D. Dietsch, Judge
Cause No. 82D03-9710-CP-3553

ON PETITION TO TRANSFER

June 28, 2000

SULLIVAN, Justice.
I respectfully dissent.

I believe the outcome of this case is controlled by Martin v. Richey,
711 N.E.2d 1273 (Ind. 1999), and Van Dusen v. Stotts, 712 N.E.2d 491 (Ind.
1999).

In Martin, the plaintiff alleged that she did not discover that she
had been the victim of medical malpractice until more than two years after
the alleged malpractice actually occurred. We held that the Medical
Malpractice Act’s two-year occurrence-based statute of limitations violated
the Indiana Constitution as applied because, inter alia, it was not
“uniformly applicable” to medical malpractice plaintiffs who did not
discover the malpractice until more than two years after occurrence.
Martin, 711 N.E.2d at 1281.

In Van Dusen, the plaintiff also alleged that he did not discover that
he had been the victim of medical malpractice until more than two years
after the alleged malpractice actually occurred. We held, consistent with
Martin, that the Indiana Constitution saved his claim from application of
the two-year statute of limitations. Van Dusen, 712 N.E.2d at 493. We
then went on to address the question of the amount of time after discovery
that the plaintiff had to file his claim. We concluded that the Act
permitted plaintiffs in such circumstances to file their claims “within two
years of the date when they discover the malpractice.” Id.

Van Dusen dealt with a situation where the alleged malpractice was
discovered more than two years after the alleged malpractice actually
occurred; in this case, Boggs discovered the alleged malpractice within two
years. But Van Dusen held that the statutory two-year time period is
available to plaintiffs who do not discover malpractice until more than two
years after occurrence. And, of course, plaintiffs who discover
malpractice at the time of occurrence also have two years within which to
file their claims. The majority opinion today, therefore, creates a class
of plaintiffs to whom “the medical malpractice statute of limitations is
not ‘uniformly applicable.’” See Martin, 711 N.E.2d at 1281. This class
consists of plaintiffs like Boggs who discover the malpractice after, but
within two years of, occurrence. It seems to me that, paraphrasing Van
Dusen, in order to effectuate legislative intent without doing violence to
the Indiana Constitution, 712 N.E.2d at 496, we cannot make the two-year
medical malpractice statute of limitations available to plaintiffs who do
not discover the malpractice until more than two years after occurrence but
deny it to those who discover within two years of occurrence.

I did not join the majority opinion in Martin v. Richey, believing
precedent dictated that the occurrence-based Medical Malpractice Act
statute of limitations was constitutional. Martin, 711 N.E.2d at 1285
(Sullivan, J., concurring in result). But we established new precedents in
Martin and Van Dusen to the effect that (1) the medical malpractice statute
of limitations must be “uniformly applicable” to medical malpractice
plaintiffs who do not discover the malpractice until more than two years
after occurrence and (2) medical malpractice plaintiffs who discover the
malpractice more than two years after occurrence have two years from the
date of discovery to file their claims. It seems to me that these new
precedents demand that if the medical malpractice statute of limitations is
to be “uniformly applicable” to medical malpractice plaintiffs, all medical
malpractice plaintiffs must have two years from the date of discovery to
file their claims.

RUCKER, J., concurs.

-----------------------
[1] See Ind. Code § 27-12-8-4 (1993) (recodified at § 34-18-8-4 (1998)).
[2] Although there is no easy way to get around the burdens of litigation
in the midst of a health crisis, a plaintiff who is aware of the statutory
limitations period may be able buy time by negotiating a waiver of the
statute of limitations from the defendant. In addition, under the statute
of limitations, a plaintiff is required to file a proposed medical
malpractice complaint with the Indiana Department of Insurance before an
action may be commenced in court. See Ind. Code § 34-18-8-4 (1998). This
process may also be time consuming, but it is surely preferable to
immediate full-blown litigation. A medical review panel may give a
plaintiff a significant period of time in which to submit evidence, under
Indiana Code § 34-18-10-3, in view of any physical hardship a plaintiff
might be undergoing.