                                                                               FILED
                                                                        Dec 29 2017, 11:32 am

                                                                               CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEY FOR APPELLEES
C. Dennis Wegner                                       David Becsey
C. Dennis Wegner & Associates, Pro.                    Zeigler, Cohen & Koch
Corp.                                                  Indianapolis, Indiana
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Nancy McDaniel, as Personal                             December 29, 2017
Representative of the Estate of                         Court of Appeals Case No.
Fred C. McDaniel, III, deceased,                        49A05-1612-CT-2759
Appellant-Plaintiff,                                    Appeal from the Marion Superior
                                                        Court
        v.
                                                        The Honorable James A. Joven,
William C. Erdel, M.D., and                             Judge
Indiana Gastroenterology, Inc.,                         Trial Court Cause No.
Appellees-Defendants.                                   49D13-1605-CT-15333




Brown, Judge.




Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017                     Page 1 of 17
[1]   Nancy McDaniel, as personal representative of the estate of her husband, Fred

      C. McDaniel, III (the “Estate”), appeals the trial court’s entry of summary

      judgment in a medical malpractice action in favor of Dr. William C. Erdel and

      Indiana Gastroenterology, Inc. (“Indiana Gastroenterology”). The Estate

      raises one issue which we restate as whether the court erred in entering

      summary judgment in favor of Dr. Erdel and Indiana Gastroenterology. We

      affirm.


                                        Facts and Procedural History

[2]   On February 6, 2002, Mr. and Mrs. McDaniel saw Dr. Azade Yedidag in the

      Liver Pre-Transplant Clinic of the merged IU/Methodist Liver Transplant

      Program in consultation for a possible liver transplant evaluation for Mr.

      McDaniel’s end-stage liver disease secondary to alcohol. Dr. Yedidag told Mrs.

      McDaniel on April 17, 2002, that for Mr. McDaniel to be on the transplant list,

      he needed to complete a rehabilitation and attend AA. Mr. McDaniels did not

      return to see Dr. Yedidag, and he was not placed on the transplant list.


[3]   Dr. Erdel, a gastroenterologist, began seeing Mr. McDaniel for liver cirrhosis

      and related complications in December 2002.1 In August 2006, Mr.

      McDaniel’s primary care provider, Dr. George DeSilvester, ordered an

      ultrasound to follow-up on his cirrhosis and it showed a problem, potentially

      cancer, with Mr. McDaniel’s liver. Mrs. McDaniel sent the report to Dr. Erdel,



      1
       Mrs. McDaniel, the medical assistant of Dr. George DeSilvester, attended every office visit her husband
      had with Dr. Erdel in the room alongside him.

      Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017                    Page 2 of 17
      called his office on August 18, 2006, and he told her that the ultrasound was

      abnormal and asked that Mr. McDaniel have an MRI of the liver and a serum

      alpha-fetoprotein level drawn, or a blood test that can show a tumor marker or

      activity of a tumor in the liver. Mrs. McDaniel discussed with Mr. McDaniel

      the need for the tests, but he did not want to do anything or know at that time if

      there were problems or not. On August 21, 2006, Mrs. McDaniel called Dr.

      Erdel, was upset, and reported that her husband was being stubborn, would not

      have an MRI, and that she knew there was nothing she could do. She also

      reported that Mr. McDaniel said “he didn’t want to know at that time. He

      would just die anyway, and he didn’t really want to know if it was or wasn’t.”

      Appellee’s Appendix Volume 2 at 45. She called back the same day to ask if

      the nodule on the liver was a tumor and if it was cancer, would it be operable.

      On August 23, 2006, Dr. Erdel spoke by telephone with Mrs. McDaniel, who

      told him that Mr. McDaniel still refused an MRI and that he was still drinking a

      few beers. In December 2006, Dr. DeSilvester ordered a follow-up ultrasound

      that showed that the tumor was growing, and Mr. McDaniel went to see Dr.

      Erdel on December 13, 2006.


[4]   In the spring of 2007, Dr. Erdel had a conversation with Mr. McDaniel about

      the risks and benefits of a percutaneous liver biopsy, and Mr. McDaniel decided

      not to undergo the treatment or procedure. Dr. DeSilvester ordered another

      ultrasound on April 19, 2007, and Mr. McDaniel returned to see Dr. Erdel on

      April 23, 2007. The ultrasound report showed an enlarging lesion that was

      probably hepatocellular carcinoma and would continue to grow. Dr. Erdel


      Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017   Page 3 of 17
      discussed with Mr. and Mrs. McDaniel treatment options of a cancer diagnosis,

      told Mr. McDaniel that he was not a transplant candidate, but he might

      possibly be a hepatectomy candidate or a candidate for local ablation, and Mr.

      McDaniel told Dr. Erdel that he did not want a liver biopsy and he also refused

      an MRI or further testing.


[5]   On October 22, 2007, Mr. McDaniel reported to Dr. Erdel “ascites and pain”

      and that he was still drinking alcohol, an ultrasound was scheduled for that

      week, and Dr. Erdel asked him to return after the ultrasound. Appellant’s

      Appendix Volume 2 at 49. Mr. McDaniel did not return at that time. On

      November 2, 2007, Mrs. McDaniel called and told Dr. Erdel that Dr.

      DeSilvester was sending records to Dr. Maurice Arregui to consider ablation

      therapy. Dr. Erdel told Mrs. McDaniel that they would wait and see what Dr.

      Arregui said, but that Mr. McDaniel may have waited too long to seek

      treatment. Dr. Arregui first evaluated Mr. McDaniel in November 2007 and,

      thereafter, he and his team of surgical oncologists treated Mr. McDaniel’s

      presumed liver cancer with radiofrequency ablation treatments, with the first

      treatment occurring on December 18, 2007, and then treatments occurring on

      May 7, 2009, in late summer 2010, and in summer 2011. After Dr. Arregui

      assumed the surgical oncology treatment of Mr. McDaniel’s presumed liver

      cancer, Dr. Erdel was not consulted or involved in the medical decisions related

      to the treatment of Mr. McDaniel’s liver cancer. On November 17, 2008, Dr.

      Erdel saw Mr. McDaniel, and the last time he saw or spoke with Mr. McDaniel

      was on December 8, 2010, for a follow-up on his cirrhosis. After December 8,


      Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017   Page 4 of 17
      2010, Mrs. McDaniel had some telephone contact with Dr. Erdel, including on

      December 19, 2011.


[6]   On February 24, 2012, Mr. McDaniel saw a Dr. Sorg at the Community Spine

      Center, and Mrs. McDaniel told him that her husband had cancer of the liver.

      In July 2012, Dr. Arregui could not complete any more radio frequency

      ablations because the lesions had returned and arranged for Mr. McDaniel to

      see Dr. Brandon Martinez for the radiation based treatment Y-90, where pellets

      of radiation are inserted through the femoral groin area up into the liver to

      destroy new tumors that had grown on the liver at that point.


[7]   On August 22, 2012, Mrs. McDaniel called Dr. Erdel, who called her back, and

      told him that Mr. McDaniel was declining and was developing confusion, and

      Dr. Erdel recommended he take Kristalose until the confusion either cleared up

      or diarrhea developed. At midnight on August 22, 2012, Mrs. McDaniel

      brought her husband into the emergency room at Community Hospital North,

      where he later died on September 1, 2012.


[8]   On February 22, 2013, the Estate filed a proposed complaint before the Indiana

      Department of Insurance, naming Dr. Arregui as the sole defendant, and

      alleging in part that the “treatment rendered by Dr. Arregui to [Mr. McDaniel]

      was inappropriate in that it was only palliative and not curative,” and that “Dr.

      Arregui failed to assist [Mr. McDaniel] in obtaining a liver transplant which

      would have cured his end stage liver disease.” Id. at 34. On March 7, 2014,

      Mrs. McDaniel filed an amended proposed complaint and added Dr. Arregui’s


      Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017   Page 5 of 17
      medical group as a named defendant. On August 4, 2014, Mrs. McDaniel filed

      a second amended proposed complaint, added Dr. DeSilvester and his group,

      Dr. Erdel, and Indiana Gastroenterology as named defendants, and alleged in

      part that “[o]n and after August 16, 2006, Dr. DeSilvester failed to offer [Mr.

      McDaniel] a referral for evaluation of a liver transplant which would have

      cured his end stage liver disease,” that “Dr. Arregui failed to offer [Mr.

      McDaniel] a referral for evaluation of a liver transplant which would have

      cured his end stage liver disease,” and that “Dr. Erdel failed to refer [Mr.

      McDaniel] to be evaluated for a liver transplant which would have cured his

      end stage liver disease.” Id. at 41-42. On January 28, 2015, the Estate filed a

      voluntary dismissal with prejudice as to Dr. Arregui, Dr. DeSilvester, and their

      respective medical groups.


[9]   On April 27, 2016, Dr. Erdel and Indiana Gastroenterology filed a motion for

      preliminary determination of law and for summary judgment. In support of the

      motion, they designated as evidence the deposition of Mrs. McDaniel, all three

      of the Estate’s complaints and January 28, 2015 voluntary dismissal, and an

      affidavit of Dr. Erdel. On August 1, 2017, the Estate filed a memorandum of

      law in opposition to summary judgment and designated selections of the

      certified records of Indiana Gastroenterology and IU Health, the depositions of

      Dr. Erdel, Dr. DeSilvester, and Dr. Arregui, three Northwest Radiology

      reports, Dr. Arregui’s certified records, and the affidavits of Mrs. McDaniels

      and Drs. E. Allen Griggs and Walid Ayoub.




      Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017   Page 6 of 17
[10]   In her deposition, Mrs. McDaniel answered affirmatively when asked if part of

       the allegation was that Dr. Erdel should have done something more for Mr.

       McDaniel to have a liver transplant, and answered the question as to what

       more Dr. Erdel should have done by stating, “I think he should have said, [Mr.

       McDaniel], if you stop drinking forever and you go back to the AA and to the

       rehab and go back to the IU and get back on the transplant list, you might have

       a chance to live.” Appellee’s Appendix Volume 2 at 84. When asked when she

       thought that should have been done, she answered “April 23rd,” and when

       asked of what year, she answered “2007, on that visit. It’s when my husband

       lost hope and lost all sense of everything at that point.” Id. She answered

       affirmatively when asked if she thought, had Dr. Erdel told Mr. McDaniel that

       he might qualify for a liver transplant if he were to stop drinking, and added

       Mr. McDaniel “would have complied to that”; answered negatively when

       asked if Mr. McDaniel had ever told her that he wished for Dr. Erdel to have

       approached him to tell him that; and testified that no “health care professional

       expert” expressed to her “the opinion that if [Mr. McDaniel] would have

       stopped drinking and he might qualify for a liver that he would get a

       transplant.” Id. at 109-110. She agreed that she never discussed an oncology

       referral with Dr. Erdel, and stated she could not recall if she ever asked for one.

       In response to a question about the conversations Mr. McDaniel had about

       stopping his drinking with family members after seeing Dr. Erdel and after they

       knew that he had a potential tumor in his liver, she stated, “[o]h, after that, I

       really don’t think he really cared about it. I think he was going to drink no



       Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017   Page 7 of 17
       matter what because he thought he was going to die at that point. And before

       that, he did try.” Id. at 111-112.


[11]   In his deposition, Dr. Erdel answered negatively when asked if “[i]n 2002 when

       you were seeing [Mr. McDaniel], if you – since Dr. Upchurch had

       recommended him for consideration as a candidate for liver transplant,

       obviously Mr. McDaniel didn’t go through with that. Do you know why as

       you sit here today,” and he answered affirmatively when asked if there was

       “any reason why [Mr. McDaniel] did not qualify for a liver transplant in 2006

       or 2007.” Appellant’s Appendix Volume 3 at 6. Dr. Erdel testified that the

       reason why Mr. McDaniel did not qualify in 2006 or 2007 was because “[h]e

       had started drinking. Well, he was drinking.” Id. He answered, “I have no

       documentation” when asked if he had documented “in 2006, 2007 that you told

       [Mr. McDaniel] that if he did not – if he would quit drinking and could be

       abstinent, that he might otherwise qualify as a candidate for a liver transplant.”

       Id. When questioned if there was “generally any reason why when you first

       suspected that [Mr. McDaniel] had hepatocellular carcinoma you didn’t

       immediately refer him . . . to an oncologist, a liver transplant surgeon, or a

       surgical oncologist,” Dr. Erdel answered, “[h]e refused.” Id. When asked if

       during his “care and treatment of [Mr. McDaniel], there was a period of time

       when he went four years abstaining from alcohol, is that not true, if your

       records show that,” Dr. Erdel stated “I’m not sure they do” and, after being

       asked “[w]hy is that,” followed up with “I’m trying to think of the exact time.

       It was probably at least three years.” Id. at 7.


       Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017   Page 8 of 17
[12]   Dr. Erdel testified that he was familiar with the Milan criteria2 and that it was

       “possible” that a patient who might have a tumor that is considered too large to

       qualify for a liver transplant may have radiofrequency ablation in which the

       tumor is shrunk and then may qualify for a liver transplant. Id. at 8. He

       testified that on July 25, 2005, Mrs. McDaniel called and said “she was

       concerned about his increasing alcohol intake” and he called Mr. McDaniel

       and “confronted him about the drinking”; that at the next meeting on August

       18, 2005, Mr. McDaniel had indicated that he had stopped drinking and Dr.

       Erdel had noted that “he had went four years but seemed to be really craving

       more alcohol lately”; that there was a notation in the medical records for the

       January 16, 2006 meeting that [Mr. McDaniel] had continued to drink and had

       four beers in January of 2006; and that a November 17, 2008 entry noted Mr.

       McDaniel’s statement that he had not had alcohol since November of 2007. Id.

       at 10, 12.


[13]   During the deposition, the following exchange occurred:


               [Counsel]: What did he say?

               [Dr. Erdel]: He said he had not had alcohol since November of
               ’07.

                                                       *****

               [Counsel]: Did you believe him?



       2
         The Milan criteria “defines the size and the number and location of [the] tumor” and lays out the
       requirements for qualification for liver transplantation for hepatocellular carcinoma. Appellant’s Appendix
       Volume 3 at 8. )

       Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017                     Page 9 of 17
        [Dr. Erdel]: I had no choice.

        [Counsel]: Well, according to you, would that not have qualified
        him to be a potential candidate for a liver transplant?

        [Dr. Erdel]: Not necessarily.

        [Counsel]: If he could meet the Milan criteria?

        [Dr. Erdel]: At that point I didn’t know what was going on.


Id. at 12. Dr. Erdel stated that he requested Mr. McDaniel to come back and

see him when counsel later asked,


        [a]t that time when you found out he hadn’t been drinking for a
        year. And according to you, if he’d stopped drinking, he may
        have met the Milan criteria to have a liver transplant. And if that
        was true, would you have not wanted to see him to see if he
        emotionally had a change of heart?


Id. When directed to a note of December 8, 2010, and asked by counsel if there

was “any reason why you could not have suggested to him, . . . you’re doing so

well, why don’t you go . . . check out the IU liver transplant program,” Dr.

Erdel responded that “[a]t that point he was, I felt, under the care of Dr.

Arregui for the primary cancer, and I was not basically making any

recommendations on treatment at that point,” and when asked “what would

have been wrong with offering [Mr. McDaniel] the opportunity to be a

candidate for a liver transplant,” he stated, “at that point in time, I did not have

complete records on what all he was having done and the status of his ablation

or anything else.” Id. at 13-14. Dr. Erdel answered affirmatively when asked

whether “there also has to be a sustained and permanent establishment of

Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017   Page 10 of 17
       abstinence from alcohol for him to qualify under the Milan criteria,” whether

       “a sustained and permanent abstinence from alcohol for a transplant

       candidacy” needs “more than just a verbal report from the patient that he’s not

       drinking,” and, whether “for instance of an outpatient rehabilitation program

       typically” there needs to be “proven documentation of attendance at AA.” Id.

       at 15.


[14]   In his deposition, Dr. Arregui testified that it would not be a fair statement to

       say that on May 16, 2008 that Mr. McDaniel met the Milan criteria, because

       “this does not preclude the fact that he had a lesion that 6.9. It just meant that I

       successfully treated that lesion and that, because I had ablated that lesion. Now

       he has several other areas that are, that are enhancing.” Id. at 70. In response

       to being asked why he did not contact Dr. Erdel and inquire into the basis for

       the note saying that Mr. McDaniel was not a transplant candidate, Dr. Arregui

       testified that he “felt that [Mr. McDaniel] fulfilled the criteria for not being a

       transplant candidate. His lesion was big. And at the time of the surgery it was

       6.9 centimeters. He was actively drinking, which is probably why, one of the

       reasons he was turned down.” Id. at 68. In response to the question that on

       November 14, 2007, Mr. McDaniel “did not qualify for a liver transplant

       because his, the mass in his liver, likely hepatocellular carcinoma, was too big,”

       Dr. Arregui stated that “[b]y that criteria it was too big,” and when asked if he

       agreed that “the liver transplantation for hepatocellular carcinoma has a long-

       term result suggesting excellent outcomes, especially when the subject qualified

       through the Milan criteria,” he stated, “I believe that [Mr. McDaniel] was


       Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017   Page 11 of 17
       evaluated by a well-known center and by report he was refused and he did not

       meet the standard criteria used commonly in the United States.” Id. at 69.


[15]   After hearing argument on the motion, the trial court granted summary

       judgment in favor of Dr. Erdel and Indiana Gastroenterology on November 18,

       2016.


                                                    Discussion

[16]   The issue is whether the trial court erred in entering summary judgment in

       favor of Dr. Erdel and Indiana Gastroenterology. We review an order for

       summary judgment de novo, applying the same standard as the trial court.

       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Our review of a summary

       judgment motion is limited to those materials designated to the trial court.

       Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.

       2001). In reviewing a trial court’s ruling on a motion for summary judgment,

       we may affirm on any grounds supported by the Indiana Trial Rule 56

       materials. Catt v. Bd. of Comm’rs of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002). The

       moving party bears the initial burden of making a prima facie showing that there

       are no genuine issues of material fact and that it is entitled to judgment as a

       matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary

       judgment is improper if the moving party fails to carry its burden, but if it

       succeeds, then the nonmoving party must come forward with evidence

       establishing the existence of a genuine issue of material fact. Id. We construe

       all factual inferences in favor of the nonmoving party and resolve all doubts as

       to the existence of a material issue against the moving party. Id.
       Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017   Page 12 of 17
[17]   The Estate contends that it timely filed its second amended proposed complaint

       for medical malpractice. Specifically, it argues that Dr. Erdel owed a duty to

       inform Mr. McDaniels of material information relevant to his informed

       decision about treatment, and the statute of limitations was tolled when Dr.

       Erdel breached that duty by fraudulently concealing the material information,

       that the physician-patient relationship between Dr. Erdel and Mr. McDaniel

       did not terminate until August 22, 2012, and that the unexplained

       disappearance of a record of an office visit from Dr. Erdel’s medical records

       impeded the bringing of litigation by delaying the discovery of the fraudulent

       concealment.


[18]   Dr. Erdel and Indiana Gastroenterology contend that the claim is time barred

       because it was not filed within two years of the occurrence of the alleged

       malpractice, that by November 2007, the McDanielses possessed enough

       information that would have led a reasonably diligent person to make a

       discovery of the potential malpractice claim and waiting five and one-half years

       to sue was inexcusable, and that neither the continuing wrong doctrine nor

       fraudulent concealment save the claim. Specifically, they argue that Mrs.

       McDaniels knew her husband had terminal liver cancer by July 2012 which had

       first been identified on 2006-2007, that because the claim is based in a failure to

       do something, the omission began to run at the latest on December 8, 2010,

       when Dr. Erdel last rendered a diagnosis or last saw and spoke with him, and

       that Mrs. McDaniels had personal knowledge of the discussions documented in

       the supposedly missing and allegedly concealed office record.


       Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017   Page 13 of 17
[19]   Indiana’s Medical Malpractice Statute of Limitations states:


               (b) A claim, whether in contract or tort, may not be brought
               against a healthcare provider based on 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. In 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. David v. Kleckner, 9 N.E.3d 147, 152-153 (Ind. 2014).

       Depending on the individual circumstances of each case, a patient’s learning of

       the resulting disease or the onset of resulting symptoms may or may not

       constitute the discovery or trigger date. Id. at 153. The point at which a

       particular claimant either knew of the malpractice and resulting injury, or

       learned of facts that would have led a person of reasonable diligence to have

       discovered the malpractice and resulting injury, must be determined. Id. When

       a medical malpractice defendant asserts the statute of limitations as an

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

       action was commenced beyond that statutory period.” Id. (quoting Overton v.

       Grillo, 896 N.E.2d 499, 502 (Ind. 2008)). If established, the burden shifts to the

       plaintiff to establish “an issue of fact material to a theory that avoids the



       Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017   Page 14 of 17
       defense.” Id. (quoting Overton, 896 N.E.2d at 502 (quoting Boggs v. Tri-State

       Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000))).


[20]   The equitable doctrine of fraudulent concealment may operate to toll the statute

       of limitations in the medical malpractice context until the termination of the

       physician-patient relationship or until discovery of the alleged malpractice,

       whichever is earlier. Boggs, 730 N.E.2d at 698. When the doctrine is

       applicable, “the patient must bring his or her claim within a reasonable period

       of time after the statute of limitations begins to run.” Id. To successfully

       invoke the doctrine of fraudulent concealment, a plaintiff must establish the

       concealment of material information somehow prevented her from inquiring

       into or investigating her condition, thus preventing her from discovering a

       potential cause of action. Garneau v. Bush, 838 N.E.2d 1134, 1142 (Ind. Ct.

       App. 2005), trans. denied.3


[21]   The alleged malpractice of Dr. Erdel occurred at the April 23, 2007 office visit.

       The Estate filed its complaint against Dr. Erdel and Indiana Gastroenterology

       on August 4, 2014. Because the evidence shows that the action was

       commenced more than two years after the date of the alleged malpractice, the




       3
        The Estate agrees with Dr. Erdel and Indiana Gastroenterology that the continuing wrong doctrine does not
       apply to this case and concedes that this case “does not involve . . . constructive or passive fraudulent
       concealment.” Appellant’s Reply Br. at 4. Thus, we do not address the continuing wrong or constructive
       concealment doctrines.

       Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017                 Page 15 of 17
       burden shifts to the Estate to establish an issue of fact material to a theory that

       avoids the defense.


[22]   The Estate argues that Dr. Erdel committed malpractice because he failed to

       mention the Milan criteria when he told Mr. McDaniel on April 23, 2007, that

       he was not a transplant candidate. The record reveals that the option of a liver

       transplant was presented as early as 2002. Both Mr. and Mrs. McDaniel were

       aware that the use of alcohol was inconsistent with participation in the liver

       transplant program as early as the April 17 return visit of the same year, at

       which time Dr. Yedidag explained that two requirements needed to be

       completed before he could qualify for the transplant list, including completion

       of rehabilitation and AA attendance. Because Mr. McDaniel did not achieve

       the former, he was not placed on the liver transplant list as a transplant

       candidate. While the evidence demonstrates that Dr. Erdel was informed at

       some point that Mr. McDaniel had stopped drinking for a period of one year, it

       also establishes that Mr. McDaniel’s alcohol usage persisted, with Mrs.

       McDaniel telling Dr. Erdel that he was still drinking on August 23, 2006, and

       Mr. McDaniel telling him similarly in October 2007, after the alleged

       malpractice on April 23, 2007.


[23]   Furthermore, the evidence reveals that Mr. McDaniel refused certain testing

       and MRIs as requested by Dr. Erdel while under his care, that his office visits

       with Dr. Erdel ceased completely after December 8, 2010, and that Dr. Erdel

       was not involved in the medical decisions related to the treatment of Mr.

       McDaniel’s liver cancer starting when Dr. Arregui and his team of surgical

       Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017   Page 16 of 17
       oncologists assumed treating Mr. McDaniel’s presumed liver cancer with at

       least four radiofrequency ablation treatments, occurring between December

       2007 and the summer of 2011. Under these circumstances, we conclude that

       the Estate has not met its burden of establishing an issue of fact material to a

       theory that avoids the defense of the statute of limitations.


                                                    Conclusion

[24]   For the foregoing reasons, we affirm the entry of summary judgment in favor of

       Dr. Erdel and Indiana Gastroenterology and against the Estate.


[25]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1612-CT-2759 | December 29, 2017   Page 17 of 17
