                                                                             FILED
                                                                       Feb 06 2017, 8:42 am

                                                                             CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
David J. Cutshaw                                           Brett T. Clayton
Kelley J. Johnson                                          Kelly H. Eddy
Gabriel A. Hawkins                                         Eichhorn & Eichhorn, LLP
Cohen & Malad, LLP                                         Indianapolis, Indiana
Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Jessica Szamocki,                                          February 6, 2017
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           49A02-1603-PL-520
        v.                                                 Appeal from the Marion Superior
                                                           Court
Anonymous Doctor and                                       The Honorable Patrick J. Dietrick,
Anonymous Group,                                           Judge
Appellees-Defendants,                                      Trial Court Cause No.
                                                           49D12-1505-PL-17261
        and

Stephen Robertson, Commissioner,
Indiana Department of Insurance

Third Party-Respondent



Crone, Judge.




Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017                      Page 1 of 16
                                                 Case Summary
[1]   Jessica Szamocki filed a proposed medical malpractice complaint against

      Anonymous Doctor and Anonymous Group (collectively “A.D.”). A.D.

      sought summary judgment on the ground that Szamocki’s complaint was

      barred by the applicable statute of limitations. Following a hearing, the trial

      court granted summary judgment in favor of A.D. Szamocki now appeals.

      Concluding that Szamocki’s claim is indeed time-barred, we affirm summary

      judgment in favor of A.D.


                                     Facts and Procedural History
[2]   On September 26, 2012, twenty-three-year-old Szamocki went to see A.D. for

      an initial appointment. Szamocki was referred to A.D., a gastroenterologist, for

      treatment regarding “stomach issues.” Appellant’s App. Vol. V at 37. After

      performing a colon exam and biopsy on Szamocki, on November 12, 2012,

      A.D. prescribed Lialda (mesalamine) to Szamocki and instructed her to take

      one tablet per day.1 A.D. did not inform Szamocki regarding any risks of

      taking mesalamine, including that mesalamine can cause renal impairment and

      that the manufacturer of Lialda recommends that a patient’s renal function be

      evaluated both prior to and periodically during treatment with the drug.




      1
          Lialda is one of the brand names for mesalamine.

      Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017   Page 2 of 16
[3]   On December 10, 2012, Szamocki had a follow-up appointment with A.D.2 At

      that appointment, A.D. told Szamocki to continue taking one tablet of

      mesalamine per day. He did not inform her of any risks of taking mesalamine

      and he did not monitor her renal function. He told her to schedule a follow-up

      visit in five to six months “to see how [she] was doing on the [mesalamine]”

      and to call him “if there are any troubles in the interim.” Id. at 38; Appellant’s

      App. Vol. II at 51. Szamocki returned to A.D.’s office at some point shortly

      after that appointment to pick up more samples of mesalamine from the

      receptionist. Szamocki never scheduled a follow-up appointment.


[4]   In March of 2013, Szamocki developed a rash on her arms and also started to

      develop symptoms of arthritis. She went to her primary care physician’s office

      and had lab tests performed. The nurse practitioner at the primary care

      physician’s office noted concerns about Szamocki’s “drastically reduced” renal

      function. Appellant’s App. Vol. III at 98. Accordingly, Szamocki was referred

      to a nephrologist, Dr. Richard Hellman.


[5]   Szamocki attended an appointment with Dr. Hellman on April 9, 2013. Dr.

      Hellman told Szamocki that she was suffering from acute renal failure and that

      mesalamine, among several other possibilities, may be the cause. However, Dr.

      Hellman did not tell Szamocki to stop taking mesalamine. On April 15, 2013,

      Szamocki went to see Dr. Michael Stack, a rheumatologist. Dr. Stack did not



      2
       We note that Szamocki repeatedly refers to December 12, 2012, as the date of her follow-up visit with A.D.,
      while A.D. refers to December 10, 2012, as the date. Our review of the designated evidence, specifically the
      medical records, reveals that December 10, 2012, is the correct date.

      Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017                      Page 3 of 16
      tell her to stop taking mesalamine. Then, on May 1, 2013, Szamocki went to

      see Dr. Michael Sweet, a homeopathic doctor. Dr. Sweet informed Szamocki

      that her muscles were weak while taking mesalamine. The next day, May 2,

      2013, Szamocki decided to stop taking mesalamine due to the side effects.


[6]   Thereafter, Szamocki began seeing nephrologist Dr. Melissa Anderson. On

      September 18, 2013, Dr. Anderson noted that she believed that Szamocki’s

      renal problems were due to mesalamine use. Szamocki had a biopsy performed

      and, on May 5, 2014, she was told that her renal failure may be caused by

      chronic use of NSAIDs, medical or herbal supplements, or infection. During a

      May 23, 2014, appointment with Dr. Anderson, Szamocki was again told that

      her renal failure may be caused by mesalamine. On September 17, 2014, at an

      appointment with Dr. Anderson, Szamocki told Dr. Anderson that she wanted

      to know if it was “clear” that mesalamine caused her renal failure because her

      family had “recommended that she pursue legal action against the prescribing

      physician.” Appellant’s App. Vol. IV at 230. Dr. Anderson told Szamocki that

      it was not a clear-cut diagnosis. Id. Szamocki continued to see Dr. Anderson

      and other specialists until January 21, 2015. On February 17, 2015, Szamocki

      went to see Dr. Evamaria Anvari, a nephrologist at the Cleveland Clinic, when

      she obtained a diagnosis that she believed confirmed that her renal failure was

      “more likely than not due to the [mesalamine].” Appellant’s App. Vol. V at 40.


[7]   Szamocki filed her proposed medical malpractice complaint against A.D. on

      February 25, 2015, alleging that he negligently prescribed mesalamine and

      failed to monitor her renal function while she was taking the drug. A.D. filed a

      Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017   Page 4 of 16
      motion for preliminary determination and motion for summary judgment,

      asserting the statute of limitations as a defense to the allegations in the proposed

      complaint. Szamocki responded to the motion for summary judgment with a

      designation of evidence. A.D. replied and filed a motion to strike certain

      affidavit statements on hearsay grounds, as well as certain medical records. A

      summary judgment hearing was held on January 11, 2016. On March 1, 2016,

      the trial court entered its findings of fact and conclusions thereon granting

      summary judgment in favor of A.D. The court also granted A.D.’s motion to

      strike. This appeal ensued.


                                      Discussion and Decision
[8]   Szamocki appeals the trial court’s grant of summary judgment in favor of A.D.

      We review a grant or denial of a summary judgment motion de novo. Houser v.

      Kaufman, 972 N.E.2d 927, 933 (Ind. Ct. App. 2012), trans. denied. “Summary

      judgment is proper only if the designated evidence shows there is no genuine

      issue as to any material fact and the moving party is entitled to judgment as a

      matter of law.” Id; see Ind. Trial Rule 56(C). We construe the facts and

      reasonable inferences established by the designated evidence in favor of the

      non-moving party. David v. Kleckner, 9 N.E.3d 147, 149 (Ind. 2014). Moreover,

      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. (citation omitted).

      Once the defendant meets that burden, the burden shifts to the plaintiff to

      establish “an issue of fact material to a theory that avoids the defense.” Id.

      Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017   Page 5 of 16
[9]    The Medical Malpractice Act’s statute of limitations is found in Indiana Code

       Section 34-18-7-1(b) and provides in relevant part:


               A claim, whether in contract or tort, may not be brought against
               a health care provider based upon a professional service 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 ….


       This is an “occurrence-based” statute of limitations, “meaning that an action

       for medical malpractice generally must be filed within two years from the date

       the alleged negligent act occurred rather than from the date it was discovered.”

       Houser, 972 N.E.2d at 933 (citation omitted).


[10]   In support of summary judgment, A.D. argues that Szamocki’s claim is time-

       barred because the alleged malpractice occurred when A.D. prescribed

       mesalamine on November 12, 2012, or at the latest on December 10, 2012, the

       date of Szamocki’s last appointment with A.D., and thus the proposed

       complaint, filed on February 25, 2015, was filed outside the two-year

       occurrence-based statute of limitations. In response, Szamocki does not dispute

       that her last encounter with A.D. occurred on December 10, 2012. However,

       she argues that (1) the two-year statute of limitations was tolled until May 2,

       2013, under the doctrine of continuing wrong, and (2) her complaint was filed

       within a reasonable time after she exercised reasonable diligence to discover the

       malpractice. We will address each argument in turn.




       Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017   Page 6 of 16
         Section 1 – The doctrine of continuing wrong is inapplicable
          to toll the statute of limitations beyond the date of the last
                           physician-patient encounter.
[11]   Szamocki first asserts that that the two-year occurrence-based statute of

       limitations was tolled under the doctrine of continuing wrong. “The doctrine of

       continuing wrong applies where an entire course of conduct combines to

       produce an injury.” Garneau v. Bush, 838 N.E.2d 1134, 1143 (Ind. Ct. App.

       2005), trans. denied (2006). When this doctrine is applicable, the two-year

       statute of limitations period begins to run at the end of the continuing wrongful

       act. Id. “In order to apply the doctrine, the plaintiff must demonstrate that the

       alleged injury-producing conduct was of a continuous nature.” Id.


[12]   In her response to A.D.’s motion for summary judgment, Szamocki argued that

       A.D. was negligent both in prescribing mesalamine and in failing to monitor

       her renal function while she was taking mesalamine. First, for the doctrine of

       continuing wrong to apply, a physician’s conduct must be more than a single

       act. See Gradus-Pizlo v. Acton, 964 N.E.2d 865, 871 (Ind. Ct. App. 2012). This

       Court has determined that the prescription of medicine constitutes a single act

       of malpractice and not an entire course of conduct, such that the doctrine of

       continuing wrong does not apply. Id. Thus, in order to bring her claim within

       the continuing wrong doctrine, Szamocki maintains that, in addition to the act

       of prescribing mesalamine, A.D.’s alleged failure to monitor her renal function

       while she was taking the drug constituted a continuing wrong which tolled the




       Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017   Page 7 of 16
       statute of limitations until she decided to stop taking the medication on May 2,

       2013.


[13]   Our supreme court’s opinion in Havens v. Ritchey, 582 N.E.2d 792 (Ind. 1991), is

       instructive here, as it recognized the seemingly narrow application of the

       continuing wrong doctrine in the medical malpractice context. In Havens, the

       plaintiff sought medical care from Dr. Ritchey due to pain in his foot. Dr.

       Ritchey performed surgery but failed to diagnose or treat the dislocation of one

       of Havens’s toes. Havens returned to Dr. Ritchey numerous times complaining

       of pain, the last trip occurring on July 3, 1985. Havens then saw a different

       doctor on October 31, 1985, who finally diagnosed him with a second

       metatarsophalangeal dislocation. Havens filed his proposed medical

       malpractice complaint on October 14, 1987, alleging that Dr. Ritchey failed to

       diagnose his dislocated bone and failed to adequately treat the dislocated bone.

       Dr. Ritchey moved for summary judgment on the basis that Havens filed his

       complaint beyond the two-year statute of limitations. The trial court agreed

       and granted summary judgment.


[14]   On appeal, our supreme court noted that Indiana courts have acknowledged the

       inherent harshness of the occurrence-based statute of limitations on certain

       plaintiffs, but also have found the rule to be reasonable in light of the other

       policies intended to be furthered by the rule. Id. at 795. In considering

       application of the continuing wrong doctrine to Dr. Ritchey’s alleged failure to

       diagnose, our supreme court emphasized the importance of the date of the last

       physician-patient encounter. The court explained,

       Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017   Page 8 of 16
               Havens last visited Ritchey on July 3, 1985. There is nothing in
               the record to demonstrate that Ritchey would have had any
               occasion to diagnose Havens’[s] problem after this date. A
               physician cannot be under a continuing duty to review all files
               daily to ensure that he did not misdiagnose a condition of a
               patient he may not have seen for months or even years. This duty
               would be completely overwhelming to health care providers, and
               cut against the purposes of the Medical Malpractice Act. We
               hold that when the sole claim of medical malpractice is a failure
               to diagnose, the omission cannot as a matter of law extend
               beyond the time the physician last rendered a diagnosis.


       Id.


[15]   As a technical matter, we realize that Szamocki’s is a claim for “failure to

       monitor” as opposed to “failure to diagnose.” While we recognize that these

       two negligence theories are not necessarily analogous, under the specific facts

       presented here, we think that the same reasoning that made the doctrine of

       continuing wrong inapplicable to toll the statute of limitations beyond the last

       physician-patient encounter in Havens persuades us to reach the same result

       here. The last time that A.D. saw Szamocki was on December 10, 2012. This

       was the last opportunity that A.D. would have had to monitor (or fail to

       monitor) Szamocki’s renal function while she was taking mesalamine.

       Szamocki did not schedule any follow-up appointments with A.D. despite

       being specifically advised to do so. Accordingly, assuming that a duty to

       monitor Szamocki’s renal function existed, A.D. would not have had any

       occasion to monitor such renal function after the date of the last physician-

       patient encounter. Under such circumstances, Szamocki cannot demonstrate


       Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017   Page 9 of 16
       that the alleged injury-producing conduct, i.e., failure to monitor, was of a

       continuous nature. We conclude as a matter of law that any alleged omission

       or nonfeasance on the part of A.D. cannot extend beyond December 10, 2012.


[16]   This Court’s recent opinions in Gradus-Pizlo and Anonymous Physician v. Rogers,

       20 N.E.3d 192 (Ind. Ct. App. 2014), trans. denied (2015), also lend support to

       our conclusion. In Gradus-Pizlo, we reversed a trial court’s denial of summary

       judgment because there was no genuine issue of material fact regarding whether

       the plaintiff’s claim was untimely pursuant to the two-year occurrence-based

       statute of limitations. 964 N.E.2d at 871. The husband/plaintiff filed a

       malpractice claim against his wife’s doctor on April 1, 2008, claiming that the

       doctor had prescribed his wife medicine on March 12, 2006, that ultimately led

       to her death. The wife took the medicine for over two weeks before a high

       potassium level attributable to the medicine led to her cardiac arrest on March

       29, 2006, at which time the medication was discontinued. The wife died on

       April 12, 2006. The doctor filed a motion for summary judgment alleging that

       the April 1, 2008, complaint was untimely.


[17]   To avoid the claim being barred by the statute of limitations, the husband

       alleged that the doctor’s “entire course of care” throughout the wife’s

       hospitalization up until the day of her death was a continuing wrong. Id.

       Despite the wife’s continuing daily consumption of the prescribed medicine that

       eventually led to her death, we reversed the trial court and entered summary

       judgment in favor of the doctor and, as noted above, held that the alleged

       medical malpractice consisted of a single act—the prescription of medicine—

       Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017   Page 10 of 16
       not an entire course of conduct. Id. We rejected the husband’s argument that

       the doctor’s entire course of care related to the prescription of the medicine

       created a continuing wrong that tolled the limitations period. Id. Rather, we

       held that the two-year statute of limitations began to run on the day the

       medication was prescribed, not the day the wife stopped taking the medication,

       and not the day of the resulting injury, the wife’s death. Id. Thus, we declined

       to apply the continuing wrong doctrine to toll the statute of limitations. Id.



[18]   In Rogers, we concluded that summary judgment in favor of a physician was

       proper as there was no genuine issue of material fact that the plaintiff’s claim

       against the physician was untimely filed and that the doctrine of continuing

       wrong did not apply to toll the two-year occurrence-based statute of limitations.

       20 N.E.3d at 201.3 There, the plaintiff went to see the physician/urologist

       during which the physician performed a flexible cystoscopy of the plaintiff’s

       bladder and diagnosed the plaintiff with bladder cancer. Between August 2006

       and January 2009, the physician performed several cystoscopies on the plaintiff.

       Before performing each cystoscopy, the physician always disinfected the

       urology equipment with Cidex OPA; he did so without informing the plaintiff

       that Cidex OPA manufacturer warnings and medical literature indicated that

       Cidex OPA was contraindicated for patients with bladder cancer. The plaintiff



       3
         In Rogers, the trial court originally granted summary judgment in favor of the physician but subsequently
       granted the plaintiff’s motion to correct error and set aside the entry of summary judgment. Id. at 195. On
       appeal, we concluded that the trial court abused its discretion in granting the motion to correct error, in effect
       reinstating the original summary judgment in favor of the physician. Id. at 201.

       Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017                          Page 11 of 16
       suffered no ill effects from the use of Cidex OPA until March 2008, after which

       he suffered allergic reactions on three separate occasions following

       cystoscopies, the last of which occurred on January 7, 2009.


[19]   In determining that the continuing wrong doctrine was inapplicable and that

       the statute of limitations began to run on January 7, 2009, the date of the last

       injury-producing act, we rejected the plaintiff’s claim that the alleged negligence

       continued beyond that point based upon the physician’s failure to investigate

       the cause of the plaintiff’s allergic reactions, read the warning labels or medical

       literature, or recognize that his use of Cidex OPA was causing the plaintiff’s

       increasingly serious allergic reactions. Id. at 199. Indeed, we specifically noted

       that, even if the continuing wrong doctrine did apply, the doctrine would not

       toll the statute of limitations beyond the date of the last physician-patient

       encounter. Id. at 200. We emphasized that the physician’s last opportunity to

       determine or recognize that the Cidex OPA was causing injury to the plaintiff

       was the date the physician last saw the plaintiff, and thus, any dispute of fact

       regarding what happened after that last encounter was immaterial and

       insufficient to preclude summary judgment for the physician. Id.


[20]   In sum, we think that our case law supports a conclusion that the continuing

       wrong doctrine is inapplicable here to toll the statute of limitations beyond the

       last physician-patient encounter between A.D. and Szamocki. As we stated

       above, assuming that a duty to monitor Szamocki’s renal function existed, A.D.

       would not have had any occasion to monitor her renal function after that date.

       Obviously, we can envision countless scenarios where other facts would come

       Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017   Page 12 of 16
       into play, and the last physician-patient encounter will not be dispositive in

       determining whether an entire course of care resulted in a continuing wrong in

       the context of a patient’s claim for failure to monitor. The undisputed facts

       here, however, lead us to conclude as a matter of law that any alleged failure to

       monitor on the part of A.D. cannot extend beyond December 10, 2012.


         Section 2 – Szamocki discovered the alleged malpractice and
              resulting injury well within the two-year statute of
       limitations, and there is no evidence that it was not reasonably
                    possible for her to timely file her claim.
[21]   Because the doctrine of continuing wrong does not apply to toll the beginning

       of the two-year statutory limitations period beyond December 10, 2012,

       Szamocki’s claim filed on February 25, 2015, was per se untimely. Thus, her

       claim can be saved only if it was not reasonably possible for her to file the claim

       within the two-year statutory limitations period. See id. Our supreme court

       recently explained,

               [I]n 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. 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. The issue to be
               determined is 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

       Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017   Page 13 of 16
               discovered the malpractice and resulting injury. If this date is
               less than two years after the occurrence of the alleged
               malpractice, the statute of limitations bars the claim unless it is
               not reasonably possible for the claimant to present the claim in
               the remaining time, in which case the claimant must do so within
               a reasonable time after the discovery or trigger date.


       David, 9 N.E.3d at 152-53 (citing Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind.

       2005)). A plaintiff’s lay suspicion that there may have been malpractice is not

       sufficient to trigger the two-year period; however, a plaintiff need not know

       with certainty that malpractice caused his or her injury to trigger the running of

       the statutory time period. Manley v. Sherer, 992 N.E.2d 670, 674-75 (Ind. 2013).4


[22]   It is often a question of fact as to when a plaintiff discovered or should have

       discovered the medical malpractice and resulting injury and thus triggered the

       statute of limitations. Houser, 972 N.E.2d at 934. However, the question may

       become one of law if there is undisputed evidence that a doctor has expressly

       informed a plaintiff that he or she 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. Id. “In such a case, a plaintiff generally is




       4
         In support of her earlier argument regarding the continuing wrong doctrine, Szamocki cites and relies on
       this Court’s opinion in Manley, 960 N.E.2d 815 (Ind. Ct. App. 2011), in which transfer was granted and the
       opinion vacated. See 992 N.E.2d 670 (Ind. 2013) (citing Ind. Appellate Rule 58(A)). When transfer is
       granted, the decision of the Court of Appeals is held for naught and has no precedential value. See Estate of
       Helms v. Helms-Hawkins, 804 N.E.2d 1260, 1268 n. 4 (Ind. Ct. App. 2004), trans. denied. Despite being aware
       of the vacated status of our prior opinion, counsel nevertheless urges us to consider the vacated opinion as
       “persuasive authority.” Appellant’s Br. at 17 n.1. We remind counsel that “naught” is defined as “nothing.”
       MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriamwebster.com/dictionary/naught (last
       visited Jan. 19, 2017). Accordingly, our vacated opinion in Manley cannot and will not be considered for any
       purpose.

       Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017                      Page 14 of 16
       deemed to have sufficient facts to require him or her to seek promptly any

       additional medical or legal advice needed to resolve any remaining uncertainty

       or confusion he or she may have regarding the cause of his injury and any legal

       recourse he or she may have.” Id. 5 “The date is also set as a matter of law

       when there is undisputed evidence that leads to the legal conclusion that the

       plaintiff should have learned of the alleged malpractice and there is no obstacle

       to initiating litigation.” Herron v. Anigbo, 897 N.E.2d 444, 450 (Ind. 2008).


[23]   The undisputed facts show that Szamocki was expressly told by doctors on

       April 9, 2013, and September 17, 2014, and perhaps additional dates in

       between, that there was a reasonable possibility that mesalamine prescribed by

       A.D. may be the cause of her renal failure. On those dates, Szamocki possessed

       enough information that, in the exercise of reasonable diligence, should have

       led to the discovery of the alleged malpractice. The record simply does not

       support Szamocki’s contrary assertions. Szamocki has asserted no fraudulent

       concealment, incapacity or obstacle to initiating litigation, or any other facts

       that would suggest that it was not reasonably possible for her to file her claim at

       the very latest by December 10, 2014.6 Accordingly, Szamocki’s claim is time-




       5
         Interestingly, the undisputed evidence indicates that Szamocki was employed as a paralegal at the law firm
       that is now pursing her malpractice claim during all relevant time periods herein. This fact cuts against any
       assertion that it was not reasonably possible for her to initiate litigation within the two-year period. Although
       Szamocki likens her situation to that of the plaintiff in Workman v. O’Bryan, 944 N.E.2d 61 (Ind. Ct. App.
       2011), trans. denied, in which we determined that it was not reasonably possible for the plaintiff to file her
       proposed complaint within the two-year statute of limitations, Workman is factually distinguishable and we
       see little commonality between Szamocki and the plaintiff in Workman.
       6
        Szamocki does not allege A.D.’s failure to advise her regarding the risks of mesalamine use or the FDA
       monitoring recommendation as a negligence theory in this case. Cf. Cox v. Paul, 828 N.E.2d 907 (Ind. 2005)

       Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017                         Page 15 of 16
       barred, and we affirm the trial court’s entry of summary judgment in favor of

       A.D. 7


[24]   Affirmed.


       Kirsch, J., and May, J., concur.




       (holding that health care provider who has notice of possible dangerous side effect of treatment may be held
       liable for failure to make reasonable efforts to advise or warn patient). However, even had she made such
       claim, our result would be the same in light of the undisputed evidence that leads us to a legal conclusion that
       she discovered her injury and the alleged malpractice less than two years after the occurrence and there was
       no obstacle to initiating litigation. Herron, 897 N.E.2d at 450.
       7
         We very briefly address Szamocki’s contention that the trial court abused its discretion in granting A.D.’s
       motion to strike, on hearsay grounds, a portion of her affidavit submitted in opposition to summary
       judgment. A trial court has broad discretion in ruling on motions to strike in the summary judgment context.
       See Graves v. Ind. Univ. Health, 32 N.E.3d 1196, 1205-06 (Ind. Ct. App. 2015) (citing Ind. Trial Rule 56(E),
       which provides in part that affidavits “shall be made on personal knowledge, shall set forth facts as would be
       admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters
       stated therein.”). Here, the trial court struck paragraph 14 of Szamocki’s affidavit in which she stated that one
       of her treating physicians, Dr. Anderson, “discouraged” her from pursuing legal action against A.D. when
       she allegedly told Szamocki that the causal link between her renal failure and mesalamine “was not a clear
       cut diagnosis.” Appellant’s App. Vol. V at 40. Szamocki claims that the statement is not hearsay and is
       admissible because it was not offered for the truth of the matter asserted, i.e., that the connection between her
       renal failure and mesalamine was unclear, but instead to explain why she delayed filing suit. Regardless,
       because we find the statement immaterial to our legal conclusion that it was reasonably possible for her to file
       suit within the statute of limitations, we need not address whether the trial court abused its discretion in
       granting the motion to strike.

       Court of Appeals of Indiana | Opinion 49A02-1603-PL-520 | February 6, 2017                         Page 16 of 16
