ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE ATTORNEY FOR APPELLEES
L. THOMAS AND NORMA SUE BOOTH ROBERT G. WILEY, M.D. RONALD K. NORLUND, O.D. AND
James P. Fenton Dane L. Tubergen MIDWEST EYE CONSULTANTS, P.C.
Alan VerPlanck Kathleen A. Kilar John Johnston
Leonard E. Eilbacher Hunt Suedhoff Kalamaros, LLP Johnston & Johnston
Eilbacher Scott, P.C. Fort Wayne, Indiana Wabash, Indiana
Fort Wayne, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 02S03-0402-CV-95
L. THOMAS BOOTH AND
NORMA SUE BOOTH, Appellants (Plaintiffs below),
v.
ROBERT G. WILEY, M.D.,
RONALD K. NORLUND, O.D., AND
MIDWEST EYE CONSULTANTS, P.C., D/B/A CATARACT
& LASER INSTITUTE,
Appellees (Defendants below).
_________________________________
Appeal from the Allen Superior Court, No. 02D01-0107-CT-260
The Honorable Nancy Eshcoff Boyer, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 02A03-0210-CV-355
_________________________________
December 30, 2005
Dickson, Justice.
In this medical malpractice action, the plaintiffs, L. Thomas Booth and Norma Sue
Booth, husband and wife, appeal from a grant of summary judgment in favor of the defendants,
Robert G. Wiley, M.D., Ronald K. Norlund, O.D., and Midwest Eye Consultants, P.C., d/b/a
Cataract & Laser Institute (collectively, "the defendants"). The Court of Appeals reversed.
Booth v. Wiley, 793 N.E.2d 1104 (Ind. Ct. App. 2003). We granted transfer and now reverse the
summary judgment and remand the case to the trial court.
In their appeal, the plaintiffs contend that, because the evidence shows that they did not
discover the alleged malpractice until more than two years after it occurred, and they initiated
their action within eight months thereafter, the trial court erred in finding their action time-
barred. The plaintiffs also assert that even if they are deemed to have discovered the alleged
malpractice within two years after it occurred, they initiated their action within a reasonable time
thereafter, as permitted by Indiana case law. 1
"Summary judgment is appropriate where the evidence shows there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law." Time Warner En-
tertainment Co., L.P. v. Whiteman, 802 N.E.2d 886, 895 (Ind. 2004); see also Ind. Trial Rule
56(C). The party seeking summary judgment has the burden of proving the non-existence of a
genuine issue of material fact. Whiteman, 802 N.E.2d at 895. In determining the appropriate-
ness of granting a summary judgment, the trial court and the reviewing appellate court construe
all facts and reasonable inferences from those facts in favor of the nonmoving party. Id.
Indiana's statutory scheme governing medical malpractice actions contains a particular
statue of limitations that provides, in relevant part:
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.
Ind. Code § 34-18-7-1(b). Because this statutory time limit begins to run upon the occurrence of
the alleged malpractice, without regard to the date of actual or constructive discovery of injury or
malpractice by a person sustaining harm, literal application of the statute has been found uncon-
stitutional in certain situations. In Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999), we held that,
1
The trial court granted summary judgment, concluding that the plaintiffs' action was barred by
the medical malpractice statute of limitations and rejecting the plaintiffs' claims under the doctrine of
fraudulent concealment and the Indiana Deceptive Consumer Sales Act. Appellants App'x. at 14. The
plaintiffs, in their appellants' brief, do not challenge the summary judgment as to their the claims of
fraudulent concealment or violation of the Deceptive Consumer Sales Act.
2
under Article 1, §§ 12 and 23 of the Indiana Constitution, the two-year occurrence-based statute
of limitations may not constitutionally be applied to preclude the filing of a claim before a plain-
tiff either knows of the malpractice and resulting injury or discovers facts that, in the exercise of
reasonable diligence, should lead to the discovery of the malpractice and the resulting injury. Id.
at 1284.
In Van Dusen v. Stotts, 712 N.E.2d 491 (Ind. 1999), a companion case to Martin, we
"formulated the general rule for triggering the running of [the Indiana Medical Malpractice Act's]
two-year statutory period," and held that persons "unable to discover the malpractice and their
resulting injury within the two-year statutory period" may "file their claims within two years of
the date when 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."
Id. at 497. We explained, "In general . . . plaintiff's lay suspicion that there may have been mal-
practice is not sufficient to trigger the two-year period. At the same time, a plaintiff need not
know with certainty that malpractice caused his injury, to trigger the running of the statutory
time period." Id. at 499 (citations omitted). To illustrate the nature of proof needed to establish
a plaintiff's date of discovery, Van Dusen provided the following example:
Moreover, when it is undisputed that plaintiff's doctor has expressly informed a plaintiff
that he has a specific injury and that there is a reasonable possibility, if not a probability,
that the specific injury was caused by a specific act at a specific time, then the question
may become one of law. Under such circumstances, generally a plaintiff is deemed to
have sufficient facts to require him to seek promptly any additional medical or legal ad-
vice needed to resolve any remaining uncertainty or confusion he may have regarding the
cause of his injury and any legal recourse he may have, and his unexplained failure to do
so should not excuse a failure to timely file a claim. Thus, in such a case, we conclude
the date on which he receives such information—that is, information that there is a rea-
sonable possibility that a specific injury was caused by a specific act at a specific time—
is the date upon which the two-year period begins to run.
Id. (citations omitted).
Two subsequent cases applied the Martin/Van Dusen rule, likewise emphasizing that to
trigger the running of the statute of limitations, a patient must discover the malpractice itself or
facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice
and the resulting injury. In Harris v. Raymond, 715 N.E.2d 388 (Ind. 1999), we affirmed the de-
3
nial of summary judgment where the plaintiff, despite experiencing pain and adverse symptoms
following a medical procedure, did not learn of the reason for her continuing medical problems
until after expiration of the two-year medical malpractice statute of limitations. We found that
the plaintiff "could not have discovered the alleged negligence within the statutory period, and to
apply the statute of limitations would force her to bring a claim before she knew or reasonably
could have known of the existence of such claim." Id. at 392. Citing Van Dusen, we held that
"the plaintiff has two years after the discovery of the malpractice or the discovery of those facts
which, in the exercise of ordinary diligence, should lead to the discovery of the malpractice
within which to bring a claim." Id. at 396. And in Halbe v. Weinberg, 717 N.E.2d 876 (Ind.
1999), we reversed a summary judgment based on the medical malpractice statute of limitations
where the action was filed in April 1992 and we found "nothing in the record that would lead us
to believe that, in the exercise of reasonable diligence, [the plaintiff] should have had any reason
whatsoever to suspect she had a cause of action against her doctor before 1992." Id. at 882.
Shortly thereafter, however, we upheld application of the medical malpractice two-year
statute of limitations "to bar a claim that was discovered several months before the limitations
period expired and well within two years of its occurrence." Boggs v. Tri-State Radiology, Inc.,
730 N.E.2d 692, 694 (Ind. 2000). Distinguishing Martin and Van Dusen as cases where the fil-
ing deadline demanded by the statute is not reasonably possible, we emphasized that the plaintiff
was not similarly situated because she "became aware of her injury eleven months before the
statute of limitations expired." Id. at 695. Noting that these circumstances did not present a
"practical impossibility of asserting the claim," we recognized that there may be other situations
where "discovering and presenting the claim within the time demanded by the statute is not rea-
sonably possible," in which case the statute of limitations may "run afoul of the Indiana Constitu-
tion." Id. at 697-98.
Focusing on the length of time the plaintiff had between discovery and the expiration of
the limitations period, the discussion in Boggs summarily referred to a plaintiff's discovery of
injury without any specific reference to the discovery of the malpractice itself, or facts that in the
exercise of reasonable diligence should lead to the discovery of the malpractice. This observa-
tion, however, did not represent a retreat from the rule of Martin and Van Dusen that the discov-
4
ery date is triggered when a plaintiff 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 resulting injury.
Synthesizing the holdings in Martin, Van Dusen, and Boggs, the following methodology
guides the application of the medical malpractice statute of limitations. 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 dis-
covery 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 reasona-
bly possible for the claimant to present the claim in the time remaining after discovery and be-
fore the end of the statutory period. In such cases where discovery occurs before the statutory
deadline but there is insufficient time to file, we have not previously addressed how much time
should be permitted. But because Boggs permits such an action to be commenced after the statu-
tory two-year occurrence-based period when timely filing is not reasonably possible, we hold
that such claimants must thereafter initiate their actions within a reasonable time.
The present case arises from medical treatment received by Thomas Booth from Dr. Nor-
lund, an optometrist with Midwest Eye Consultants, and Dr. Wiley, a surgeon. The following
salient dates as to the statute of limitations issue are not in dispute:
• October 1998 – Mr. Booth, already suffering from preexisting cataracts and glaucoma,
consulted Dr. Norlund, who evaluated and referred him to Dr. Wiley for Lasik 2
surgery.
• November 2, 1998 – Dr. Wiley performed Lasik surgery on both of Mr. Booth's eyes.
2
The United States Food and Drug Administration, which is responsible for the evaluation and
approval of the various laser devise models used in Laser-Assisted In-Situ Keratomileusis (LASIK), de-
scribes the procedure as one using a laser to "permanently change[] the shape of the cornea, the clear cov-
ering of the front of the eye," in order to "reduce a person's dependency on glasses or contact lenses."
U.S. Food and Drug Administration, LASIK Eye Surgery, at http://www.fda.gov/cdrh/LASIK/default.htm
(last visited July 8, 2005). While the FDA refers to the procedure acronym in all capital letters, the par-
ties do not, and in our opinion today, we follow the capitalization convention adopted by the parties.
5
• February 8, 1999 – Dr. Wiley performed Lasik enhancement surgery on both of Mr.
Booth's eyes.
• May 4, 1999 – Dr. Wiley performed cataract surgery on Mr. Booth's right eye, but he
was unable to implant an intra-ocular lens because of surgical complications.
• May 11, 1999 – Dr. Wiley successfully implanted a lens in Mr. Booth's right eye, but he
was left with substantial swelling in and about the eye. Vision in his right eye af-
ter this surgery was very poor and Mr. Booth was scheduled for another surgery
to replace the lens.
• August 2, 1999 – Dr. Wiley performed another surgery to replace the lens in Mr.
Booth's right eye.
• October 1999 – Mr. Booth was nearly blind in his right eye. On Dr. Wiley's referral, he
visited Dr. Sandra Chern, a retinal vitreous specialist, whose examination re-
vealed extensive damage to Mr. Booth's right eye causing a permanent loss of vi-
sion.
• November 2000 – Dr. Wiley referred Mr. Booth to Dr. Rex Parent for cataract surgery
on his left eye.
• December 4, 2000 – during consultation, Dr. Parent told Mr. Booth that Lasik surgery
should not have been performed because of his preexisting cataracts and glau-
coma.
• February 13, 2001 – Dr. Parent performed cataract surgery on Mr. Booth's left eye.
• July 24, 2001 – The Booths filed their medical malpractice complaint. 3
See list of "undisputed facts" in trial court judgment, Appellants' App'x. at 9-11.
Based on these facts, the trial court granted summary judgment to the defendants. Id. at
9-11, 14. The trial court found that by the conclusion of his visit to Dr. Chern in October 1999,
Mr. Booth knew that his right eye suffered from a posterior vitreous detachment, retinal hemor-
rhages, and damage to the optic nerve as a result of interruption of the blood supply, which dam-
age and loss of vision was permanent. Id. at 13. From this finding, the trial court concluded that
Mr. Booth "possessed enough information which would have led a reasonably diligent person to
discover the alleged malpractice and resulting injury by October 1999," which "therefore fell
within the two-year limitation period." Id. Focusing upon alleged malpractice occurring No-
vember 2, 1998; February 8, 1999; and May 11, 1999, the court then found that the statute of
3
The trial court treats July 24, 2001, as the date this action was filed. Appellants' App'x. at 11.
On that date the plaintiffs filed their complaint against all defendants in Allen Superior Court. Id. at 16.
Plaintiffs' counsel report that this filing was based on information received from the Indiana Department
of Insurance that Dr. Norlund and Midwest were not qualified providers under the Indiana Medical Mal-
practice Act. Id. at 93-94. After being informed that this information was incorrect and that said defen-
dants were qualified under the Act, the plaintiffs filed their complaint with the Department of Insurance
on September 18, 2001. Id. at 94; Appellees Norlund and Midwest App'x. at 13.
6
limitations "did not shorten the window of time between the [October 1999] discovery of the al-
leged malpractice and the expiration of the limitation period so unreasonably that it became im-
practical" for the Booths to file their claim. Id. at 13-14.
The plaintiffs challenge the summary judgment, asserting that at no time related to the
October 1999 examination did Dr. Chern advise or suggest that Mr. Booth's vision problems
were related to the Lasik surgery. The plaintiffs also emphasize evidence indicating that Dr.
Wiley had continued to present other explanations for the vision difficulties, such as glaucoma
and plaque associated with "mini strokes," without ever mentioning the Lasik surgeries as the
cause of the worsening condition. The plaintiffs' complaint alleges that Dr. Norlund and Dr.
Wiley were negligent in the recommendation of Lasik surgery and their evaluation prior to sur-
gery, and that Dr. Wiley negligently caused the loss of blood supply to and damage of the right
optic nerve. Id. at 18. In their Appellants' Brief, they describe the malpractice as "inform[ing] a
patient with a history of glaucoma and cataracts and with very poor vision that he was a viable
candidate for Lasik vision correction surgery and, thereafter, [performing] Lasik surgery on that
patient." Br. of Appellants at 7. According to the plaintiffs, after the ill-advised surgery and re-
sulting vision deterioration, Dr. Norlund and Dr. Wiley assured Mr. Booth that his vision prob-
lems did not arise from the surgery, but rather from another medical condition for which Mr.
Booth was consulting them. Id. The plaintiffs urge that, particularly in light of these assurances,
Mr. Booth did not reasonably suspect medical malpractice until his consultation with Dr. Parent
in December 2000, where he learned for the first time that the cause of his vision difficulties
might have been the Lasik surgery. Considering this as the date the plaintiffs learned of facts
that should have led to the discovery of the malpractice and resulting injury, the plaintiffs' com-
plaint filed seven months later was easily within the two-year period permitted under Martin,
Van Dusen, and Harris.
The defendants contend that summary judgment was appropriate because of the undis-
puted evidence that Mr. Booth suffered from problems almost immediately after his surgeries
and that within two years of the earliest possible act of alleged malpractice, he learned from Dr.
Chern of various and extensive problems in his right eye, including the permanent loss of vision.
The defendants argue these events establish as a matter of law that Mr. Booth knew of facts that,
7
in the exercise of reasonable diligence, should have led him to discover his alleged malpractice
claims within the two-year occurrence-based statute of limitations, but that the plaintiffs did not
initiate this action within the time prescribed by the statute of limitations.
Citing one or more of three cases decided by the Court of Appeals since Martin and Van
Dusen, all the defendants seek to minimize the amount of information needed by a malpractice
claimant to constitute discovery of the alleged malpractice.
In Johnson v. Gupta, 762 N.E.2d 1280 (Ind. Ct. App. 2002), trans. not sought, the court
upheld the grant of summary judgment for the defendants because the plaintiff's action was not
timely filed. The court determined that within seventeen months, at the latest, of the alleged act
of malpractice, the plaintiff "discovered facts that, in the exercise of reasonable diligence, should
have led to the discovery of the malpractice." Id. at 1283 (emphasis added). Gupta includes a
statement disapproving of the assertion that the statute of limitations is "tolled until the patient
discovers a causal link between the physician's actions and the patient's injury." Id. But the
Gupta court expressly recognized that the occurrence-based statute of limitations does not apply
"in cases where the patient does not suffer symptoms that put the patient on notice that some-
thing may have gone wrong in the course of medical treatment." Id. (emphasis added).
The Court of Appeals reversed the denial of summary judgment in Rogers v. Mendel, 758
N.E.2d 946 (Ind. Ct. App. 2001), trans denied, holding that a malpractice claim was barred by
the statute of limitations where it was filed about six and one half years after the alleged act of
malpractice, but only twenty-one months after the point at which the plaintiff had received
"enough information that, in the exercise of reasonable diligence, should have led to the discov-
ery of the alleged malpractice." Id. at 952. The court did not apply the Van Dusen rule permit-
ting a full two years after discovery to file the action, but instead found that the plaintiffs had
"ten months of the occurrence-based two-year statute of limitations" to file their complaint,
which timeframe made such filing "reasonably possible" (but the court calculated the limitation
period as beginning with the patient's release from the doctor's care rather than from the occur-
rence of the malpractice). Id. Because the court's rationale intermixed the analysis applicable to
the theory of fraudulent concealment with that applicable when malpractice is discovered less
8
than two years after its occurrence, we believe this decision is not helpful. See Boggs, 730
N.E.2d at 697-699.
In GYN-OB Consultants, L.L.C. v. Schopp, 780 N.E.2d 1206 (Ind. Ct. App. 2003), the
court reversed the denial of the defendants' motion for summary judgment based on the medical
malpractice statute of limitations, finding that the plaintiff, by two months after the occurrence of
the alleged malpractice, had "information that should have led her to the discovery of the mal-
practice." Id. at 1211 (emphasis added). The court noted that "the [p]atient experienced from
the outset symptoms that . . . at the very least would cause a person of reasonable diligence to
take action that would lead to the discovery of the malpractice." Id. Like Gupta, the court in
Schopp did not rest upon the plaintiff's discovery of symptoms alone, but emphasized that dis-
covery occurs only when a plaintiff has facts that should reasonably lead to the discovery of the
malpractice.
While the facts stressed by the defendants in the present case demonstrate that Mr. Booth
had knowledge within the period prescribed by the statute of limitations that he had serious vi-
sion problems and probable permanent vision impairment, they do not necessarily establish as an
undisputed issue of fact that this amounts to discovery of "facts which, in the exercise of reason-
able diligence, should lead to the discovery of the medical malpractice." Van Dusen, 712 N.E.2d
at 497. Mr. Booth had already been suffering from cataracts and glaucoma before he first con-
sulted the defendant physicians. And factual questions exist regarding representations made to
Mr. Booth by Dr. Wiley attributing Mr. Booth's symptoms to causes unrelated to the Lasik sur-
gery. Furthermore, there is no evidence establishing that the October 1999 examination by Dr.
Chern provided Mr. Booth with any information that should reasonably have caused Mr. Booth
to doubt Dr. Wiley's representations. The medical description of Mr. Booth's right-eye problems
provided by Dr. Chern in October 1999 did not establish the non-existence of a genuine question
of fact regarding whether Mr. Booth was put "on notice that something may have gone wrong in
the course of medical treatment." Gupta, 762 N.E.2d at 1283.
The evidence does not indisputably establish that Mr. Booth discovered the malpractice
and resulting injury, or acquired knowledge sufficient to lead a reasonably diligent person to dis-
9
cover the malpractice and resulting injury, until December 4, 2000, when Dr. Parent advised him
that the Lasik surgery should not have been performed because of his preexisting cataracts and
glaucoma. Therefore, as to alleged malpractice occurring more than two years earlier, the dis-
covery occurred outside the two-year occurrence-based statute of limitations, authorizing the
plaintiffs to initiate their action within two years after discovery, with which they complied by
initiating this action on July 24, 2001, or September 18, 2001. 4 Thus, the statute of limitations
does not preclude any claims arising out of Dr. Norlund's evaluation, advice, and referral of Oc-
tober 1998 and those arising from Dr. Wiley's surgery on November 2, 1998. As to these claims,
it was error to grant the defendants' motions for summary judgment.
While reaching this conclusion under the facts of this case, we are not holding that an ex-
pert's advice is always required to put a patient on notice that problems may be due to malprac-
tice. In fact, in most cases, such advice is not required. It is true in this case because the symp-
toms were reasonably attributable to Mr. Booth's pre-treatment condition. But in many cases, the
malpractice produces conditions that reasonably suggest the possibility of malpractice without
any expert advice. As noted in our discussion above, the discovery date will be triggered when 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 resulting
injury. This does not necessarily require a medical advisement, but may arise from a patient's
ordinary experiences and observations, provided that these facts are such that they do or should
reasonably lead to the discovery of the malpractice and resulting injury.
The plaintiffs' malpractice claims against Dr. Norlund and Midwest arise from the doc-
tor's medical services on October 26, 1998, and up to November 2, 1998. Plaintiffs' Memoran-
dum in Opposition to the Motion for Summary Judgment of Defendants Dr. Norlund and Mid-
west, Appellants' App'x. at 64-65, 68, 69. The plaintiffs assert that the "gravamen" of their com-
plaint against Dr. Wiley was his original Lasik surgery performed on November 2, 1998. Plain-
tiffs' Memorandum of Law in Opposition to Defendant Dr. Wiley's Motion for Summary Judg-
ment, Appellants' App'x. at 59. Thus as to the alleged malpractice of Dr. Norlund and Midwest,
4
See supra note 3. Because we find the discovery date was December 4, 2000, the result is the
same as to these claims regardless which filing date is used, because they were both within two years after
the discovery date.
10
and that of Dr. Wiley on November 2, 1998, the principal malpractice claims asserted by the
plaintiffs, we find that the complaint was timely filed.
To the extent that the plaintiffs' action may be deemed to include claims based on medi-
cal care provided after December 4, 1998 (two years before discovery), the plaintiffs were re-
quired to file their action within the time demanded by the occurrence-based statute, unless "not
reasonably possible." Boggs, 730 N.E.2d at 697-98 (Ind. 2000). Dr. Wiley's arguments assert
that the plaintiffs filed their complaint July 24, 2001, Br. of Appellee Wiley at 3, 7, 8, 13, and he
does not claim untimely filing based upon the September filing with the Department of Insur-
ance. 5 Here the plaintiffs' court filing was seven months after discovery. As to the medical pro-
cedures performed by Dr. Wiley in February 1999 and in May 1999, the plaintiffs had two and
five months, respectively, after discovery within which to file their malpractice action within the
statutory limitation period. Plaintiffs' counsel asserts that time was required to investigate, to
obtain and review medical records, to interview and secure a report from Dr. Parent, and to de-
termine whether the defendants were qualified providers under the statute. Affidavit of Alan
Verplanck, Appellants' App'x. at 80-81. With respect to any malpractice claims against Dr.
Wiley for medical care provided after December 4, 1998, he has not foreclosed the genuine issue
of material fact regarding whether it was reasonably possible for the plaintiffs to file within the
statutory limitation period after discovery nor, if not, whether the claims were filed within a rea-
sonable time after discovery. As to such claims, it was error to grant Dr. Wiley's motion for
summary judgment.
While finding summary judgment inappropriate on the issue of the medical malpractice
statute of limitation, this defense may be presented for resolution based upon the evidence pre-
sented at trial.
For these reasons, and having previously granted transfer, we reverse the judgment grant-
5
Whether compliance with the statute of limitations is determined by the date of the court filing
or the filing with the Department of Insurance has received attention in several recent cases. See, e.g.,
Guinn v. Light, 558 N.E.2d 821, 824 (Ind. 1990); Lusk v. Swanson, 753 N.E.2d 748, 752 (Ind. Ct. App.
2001); Mayfield v. Continental Rehab. Hosp., 690 N.E.2d 738 (Ind. Ct. App. 1998); Putnam County
Hosp. v. Sells, 619 N.E.2d 968 (Ind. Ct. App. 1993). In the present case, however, the issue is raised only
by Dr. Norlund and Midwest, and as to them the issue is not determinative.
11
ing the defendants' motions for summary judgment and remand to the trial court for further pro-
ceedings.
Boehm and Rucker, JJ., concur. Shepard, C.J., dissents with separate opinion. Sullivan,
J., dissents with separate opinion.
12
Shepard, Chief Justice, dissenting.
Since the seminal holdings about the Indiana’s medical malpractice statute in Justice De-
Bruler’s opinion, Johnson v. St. Vincent Hospital, 273 Ind. 374, 404 N.E.2d 585 (1980), nearly
every decision has adhered to the declaration that the occurrence-based statute of limitations is
constitutional on its face.
In Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999), we held that the statute was unconsti-
tutional as applied if it imposed “an impossible condition on [a] plaintiff’s access to courts” by
barring a malpractice action “simply because she has a disease which may not manifest signifi-
cant pain or debilitating symptoms until several years after the initial diagnosis or misdiagnosis.”
Id. at 1282, 1284. The claim in Martin v. Richey was failure to diagnose breast cancer. We
marked the date her injury manifested itself as the date she learned she had breast cancer, three
years after the claimed misdiagnosis. Id. at 1284-85.
This ruling to acknowledge the impossibility of filing certain claims within two years of
an act of malpractice was likewise evident in the companion case of Van Dusen v. Stotts, 712
N.E.2d 491 (Ind. 1999). There, we said that construing the statute consistent with the state con-
stitution required permitting claims to be filed beyond the two-year limit for “plaintiffs who, be-
cause they suffer from cancer or other similar diseases or medical conditions with long latency
periods…are unable to discover the malpractice and their resulting injury.” Id. at 497.
In these cases and others, once the two-year occurrence statute is cast aside, it has be-
come a challenge to identify any actual date on which the statute of limitation might begin to run.
In Boggs v. Tri-State Radiology, 730 N.E.2d 692 (Ind. 2000), we held that the statute would run
from the date of an alleged misdiagnosis of breast cancer, in an instance where the patient
learned she had cancer thirteen months later.
The text of today’s majority opinion suggests an intent to overrule these earlier holdings
by saying that knowing you have been injured is not enough to warrant applying the statute the
Legislature gave us. Rather, the majority puts us on the path that the statute of limitation cannot
run unless a medical expert informs the patient that the “pain or debilitating symptoms,” (to use
the marker Justice Selby laid down), are the product of negligence by a particular actor. Slip.
opin. at 4, 9.
This declaration, of course, outlines a rule of limitation far more elastic than Indiana ap-
plies in any other field of tort law. The dramatic power of this new approach is made manifest
by applying it to the remarkable underlying facts in this case – the malpractice claim centers on
an operation whose results were a disaster virtually from the day it occurred.
This takes us light years from the restrained application of constitutional principles re-
flected in Martin v. Richey and turns the medical malpractice statute of limitations into a very
liberal rule without so much as a word about why the Indiana Constitution requires the result.
2
Sullivan, Justice, dissenting.
I respectfully dissent. I believe that the trial court properly analyzed this case when it
concluded that, at least by the conclusion of Dr. Chern’s examination in October, 1999, Mr.
Booth knew that his right eye suffered from a posterior vitreous detachment, retinal hemor-
rhages, and damage to the optic nerve as a result of interruption of the blood supply and that the
damage and loss of vision was permanent. I believe, as did the trial court, that this knowledge
constituted sufficient information to lead a reasonably diligent person to discover the alleged
malpractice and resulting injury by October, 1999. This date fell within the two-year medical
malpractice statute of limitations, rendering untimely Mr. Booth’s medical malpractice complaint
filed on July 24, 2001.
The Court says that it does not intend that the result of its opinion “necessarily” to be that
the medical malpractice statute of limitations only begins to run when a medical expert informs
the patient that the pain or symptoms are the product of a particular provider’s medical negli-
gence. But that is the result here. And why is an expert opinion required here? It appears to be
because “Mr. Booth had already been suffering from cataracts and glaucoma before he first con-
sulted the defendant physicians,” that is, because he had a pre-existing eye condition. If this is
so, then it appears that an expert opinion is necessarily required whenever the alleged malprac-
tice is associated with a pre-existing condition.
While not all medical treatment is associated with a pre-existing condition (e.g., purely
elective cosmetic surgery; routine scheduled physical examinations, etc.), the reason for most
medical treatment is precisely because of some pre-existing condition. The result of the Court’s
opinion today seems to me to be that the medical malpractice statute of limitations is tolled
whenever the alleged malpractice is associated with a pre-existing condition until the patient re-
ceives an expert opinion that the pain or symptoms are the product of a particular provider’s
medical negligence. I believe that this conflicts with the mandate of the Medical Malpractice
Act.