ATTORNEYS FOR APPELLANT                                      ATTORNEY FOR APPELLEE
Mark D. Gerth                                                David D. Becsey
Donald L. Dawson                                             Zeigler Cohen & Koch
Kightlinger & Gray, LLP                                      Indianapolis, Indiana
Indianapolis, Indiana

______________________________________________________________________________

                                             In the
                             Indiana Supreme Court
                            _________________________________                May 28 2014, 1:30 pm


                                     No. 49S02-1405-MI-355

LARRY ROBERT DAVID, II, AS SPECIAL ADMINISTRATOR
      OF THE ESTATE OF LISA MARIE DAVID, DECEASED,                   Appellant (Respondent),

                                                 v.

WILLIAM KLECKNER, M.D.,                                     Appellee (Petitioner).
                            _________________________________

               Appeal from the Marion Superior Court, No. 49D13-1208-MI-30944
                           The Honorable Timothy W. Oakes, Judge
                            _________________________________

             On Transfer from the Indiana Court of Appeals, No. 49A02-1301-MI-13
                            _________________________________

                                          May 28, 2014

Dickson, Chief Justice.


        This appeal challenges a summary judgment in a wrongful death medical malpractice
case brought by the deceased patient's husband as administrator of her estate. The defendant
physician sought summary judgment on grounds that the plaintiff's complaint was barred by the
applicable statute of limitations. The trial court granted the motion and, finding no reason for
delay, entered final judgment against the plaintiff. The Court of Appeals affirmed in a memo-
randum decision. David v. Kleckner, No. 49A02-1301-MI-13, 989 N.E.2d 843 (Ind. Ct. App.
June 14, 2013) (table). We now grant transfer and reverse the trial court.
        In its review of a summary judgment, an appellate court applies the same standard as the
trial court. Overton v. Grillo, 896 N.E.2d 499, 502 (Ind. 2008). Summary judgment may be
granted, or affirmed on appeal, only "if the designated evidentiary matter shows that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a mat-
ter of law." Ind. Trial Rule 56(C). All facts and reasonable inferences established by the desig-
nated evidence are to be construed in favor of the non-moving party. Overton, 896 N.E.2d at
502. 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. If established, the burden shifts to the plaintiff to establish "an issue
of fact material to a theory that avoids the defense." Id. (quoting Boggs v. Tri-State Radiology,
Inc., 730 N.E.2d 692, 695 (Ind. 2000)).


        In response to the defendant's motion for summary judgment, the plaintiff argued in the
trial court, and argues on appeal, that (a) the complaint was filed within a reasonable time after
the plaintiff discovered the malpractice and (b) the statute of limitations was tolled under the
doctrine of fraudulent concealment, and the complaint was filed within a reasonable time after
the concealment ceased. 1


        Dr. William Kleckner was the family physician for Lisa David, the plaintiff's decedent,
for approximately ten years until the time of her death on March 25, 2011. During her annual
physical on November 24, 2008, Dr. Kleckner conducted a routine pap smear, the results of
which indicated abnormalities. A second pap smear was conducted two months later, on January
28, 2009, which also detected abnormalities. The pathologist reviewing the second pap smear
submitted a report to Dr. Kleckner stating "[e]ndocervical and endometrial biopsy is recom-
mended if clinically indicated." Appellant's App'x at 270. On February 27, 2009, Dr. Kleckner
performed an endometrial biopsy, but not an endocervical biopsy. The performed endometrial
biopsy was negative for signs of cancer or other medical conditions. At Dr. Kleckner's direction,
his medical assistant contacted Lisa on March 13, 2009, and told her, among other things, "All
okay," "Looks fine," and "Came back clear." Id. at 31, 68, 231. No endocervical biopsy was


        1
         Because we find the first issue determinative, we decline to address the claim of fraudulent con-
cealment.
                                                    2
ever performed, however, and Lisa was never told of the pathologist's recommendations regard-
ing an endocervical biopsy. In the next five months, Lisa began to experience genital pain, dis-
comfort, and bleeding. She saw a specialist in obstetrics and gynecology, Dr. Keith Bean, on
September 1, 2009, although the parties dispute whether this was at the referral of Dr. Kleckner.
Dr. Bean examined Lisa and detected a mass on Lisa's cervix, and on September 3, 2009, Dr.
Bean's office informed Lisa that the mass was a cancerous tumor. The plaintiff contends, and
Dr. Kleckner denies, that approximately one week after receiving this news, Dr. Kleckner as-
sured Lisa that no tumor was present when he examined her on February 27, 2009—the date he
performed the endometrial biopsy. Shortly after the discovery of her cervical tumor, Lisa began
treatment for her cancer. Unfortunately, the treatment was not successful, and Lisa died on
March 25, 2011.


       It was in "mid to late February, 2011," that Lisa's husband, Larry David, "became suspi-
cious of why Dr. Kleckner hadn't found any evidence of cancer or a tumor when he had last seen
Lisa." Id. at 184. He consulted an attorney who provided medical information releases that Lisa
signed and which enabled Larry on February 25, 2011, to obtain Dr. Kleckner's medical records,
which he gave to the attorney for review by medical experts. Larry states that it was not until
after Lisa's death on March 25, 2011, that he learned "Dr. Kleckner had not performed the rec-
ommended endocervical biopsy." Id. at 185. On July 1, 2011, three months and seven days after
Lisa's death, the estate commenced this action by filing its proposed complaint for damages with
the Department of Insurance. Id. at 30. The complaint alleged that Dr. Kleckner negligently
failed to perform the recommended endocervical biopsy and that this mistake led to a late diag-
nosis of Lisa's cancer, resulting in a diminution in her chances of receiving effective treatment
and ultimately her death. Id. at 32–33. The proposed complaint was filed more than 28 months
after Dr. Kleckner allegedly failed to perform the endocervical biopsy.


       Dr. Kleckner's motion for summary judgment is based on the statute of limitations under
the Indiana Medical Malpractice Act which 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 . . . .

                                                 3
Ind. Code § 34-18-7-1(b).


        Subsequent case law, however, has ameliorated the harsh effects resulting from literally
applying this provision to prohibit every malpractice action commenced more than two years af-
ter the actual occurrence of the alleged act of medical negligence. In Martin v. Richey, 711
N.E.2d 1273 (Ind. 1999), we reversed a summary judgment based on the medical malpractice
statute of limitations where the plaintiff alleged medical negligence in the failure to diagnose and
treat breast cancer. She first learned of the cancer three years later and commenced her action
within the next six months. This Court found the occurrence based statute of limitations uncon-
stitutional as applied:
        Stated another way, the medical malpractice statute of limitations is unconstitutional as
        applied when plaintiff did not know or, in the exercise of reasonable diligence, could not
        have discovered that she had sustained an injury as a result of malpractice, because in
        such a case the statute of limitations would impose an impossible condition on plaintiff's
        access to courts and ability to pursue an otherwise valid tort claim. To hold otherwise
        would be to require a plaintiff to bring a claim for medical malpractice before becoming
        aware of her injury and damages, an essential element of any negligence claim, and this
        indeed would be boarding the bus to topsy-turvy land.
Id. at 1284 (footnote omitted). In Van Dusen v. Stotts, a companion case to Martin, we an-
nounced the general rule that persons "unable to discover the malpractice and their resulting inju-
ry 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." 712 N.E.2d
491, 497 (Ind. 1999). Ensuing decisions of this Court, however, present arguably incongruent
views regarding the general rule allowing a plaintiff an opportunity, in the exercise of reasonable
diligence, to discover malpractice.


        The following year, this Court addressed the application of Richey and Van Dusen to a
medical malpractice claim alleging medical negligence regarding the detection of breast cancer.
We affirmed summary judgment applying the two-year statutory limitation period, explaining:
        [The plaintiff and plaintiff's decedent] had an 11-month window to file a medical mal-
        practice claim after knowledge of the injury, yet did not. We hold that as long as the stat-
        ute of limitations does not shorten this window of time so unreasonably that it is imprac-
        tical for a plaintiff to file a claim at all . . . it is constitutional as applied to that plaintiff.

                                                      4
Boggs, 730 N.E.2d at 697. Five years later, in Booth v. Wiley, we synthesized the holdings in
Martin, Van Dusen, and Boggs as follows:
       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 dili-
       gent person to make such discovery. If the discovery date is more than two years beyond
       the date the malpractice occurred, the claimant has two years after discovery within
       which to initiate a malpractice action. But if the discovery date is within two years fol-
       lowing the occurrence of the alleged malpractice, the statutory limitation period applies
       and the action must be initiated before the period expires, unless it is not reasonably pos-
       sible 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 hold that such claimants
       must thereafter initiate their actions within a reasonable time.
839 N.E.2d 1168, 1172 (Ind. 2005). In Booth, the plaintiff argued that he became aware of dete-
riorating vision about 11 months after having Lasik surgery but "did not reasonably suspect med-
ical malpractice" until about 25 months after the surgery. Id. at 1174. We reversed summary
judgment, concluding that there remained a genuine issue whether the facts should have led the
plaintiff, in the exercise of reasonable diligence, to discover the medical malpractice.


       In two subsequent cases, the Court focused primarily on the date the plaintiff discovered
the injury resulting from the alleged malpractice, and little if any consideration was given to the
point in time when the plaintiff possessed enough information to lead to the discovery of the
malpractice. In Brinkman v. Bueter, the Court declared that "[a] plaintiff does not need to be
told malpractice occurred to trigger the statute of limitations," and "[n]othing prevented the
[plaintiffs] from seeking further medical or legal advice." 879 N.E.2d 549, 555 (Ind. 2008) (cita-
tion omitted). The Brinkman Court did not discuss the synthesis presented in Booth nor did it
provide any express analysis regarding whether the discovery of the injury, standing alone, pro-
vided sufficient cause to lead to the discovery of malpractice. Similarly, this opportunity for dis-
covery, as an element of determining the discovery or trigger date, was not revisited in Overton.
Without overruling or expressing disapproval of the discovery opportunity element holdings in
Booth and Van Dusen, the Overton court found its decision controlled by Boggs and Brinkman,
and summarily declared that "the trigger date" was when the plaintiff "learned that she had can-



                                                 5
cer," and that "nothing prevented" the plaintiff from timely filing her complaint. Overton, 896
N.E.2d at 504.


       Contemporaneous with Overton, this Court also handed down Herron v. Anigbo, a medi-
cal malpractice case commenced 33 months after the alleged malpractice. The actual holding in
Herron was:
       [O]nce [the plaintiff] was informed of the potential of malpractice reasonable diligence
       required investigation and assertion of the claim within the limitations period, if that
       could have reasonably been accomplished. As of [the date he was so informed], four
       months remained to assert a claim, and [the plaintiff] did not file until thirteen months
       later. As a matter of law four months was sufficient time to get a claim on file unless [the
       plaintiff] offered evidence that he was not reasonably able to consult an attorney who
       could investigate and file any claim within the limitations period.
897 N.E.2d 444, 453 (Ind. 2008). In dicta, however, the Herron Court declared, without citation
to authority, that "reasonable diligence requires more than inaction by a patient who, before the
statute has expired, does or should know of both the injury or disease and the treatment that ei-
ther caused or failed to identify or improve it, even if there is no reason to suspect malpractice."
Id. at 449 (emphasis added). Significantly, however, Herron described the "trigger date" as the
date when "the plaintiff knew, or should have known, of the alleged symptom or condition, and
facts that in the exercise of reasonable diligence would lead to discovery of the potential of mal-
practice." Id. at 450. And Herron quoted with approval from Booth, emphasizing that "the ulti-
mate question becomes the time at which a patient 'either (1) knows of the malpractice and re-
sulting 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.'" Id. at 448–49 (quoting Booth, 839 N.E.2d
at 1172).


       Last year, in Manley v. Sherer, this Court again acknowledged the discovery opportunity
element: "In order for the date to be triggered, our case law requires that a plaintiff be aware of
'facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice
and the resulting injury.'" 992 N.E.2d 670, 674 (Ind. 2013) (quoting Booth, 839 N.E.2d at 1171
(quoting Van Dusen, 712 N.E.2d at 497)). And we applied the principle that, once a defendant—
as the party moving for summary judgment—has established that the medical malpractice action
was filed outside the statute of limitations, the plaintiff then has the burden to establish "an issue

                                                   6
of fact material to a theory that avoids the defense." Id. (quoting Boggs, 730 N.E.2d at 695). We
reversed summary judgment finding "that there remains a genuine issue of material fact as to
both the trigger date and, if within the two-year limitation period, whether the plaintiffs filed
their complaint within a reasonable time." Id. at 675.


       We conclude that neither Brinkman, Overton, nor Herron should be read to undermine
the discovery opportunity element expressly recognized in Manley, Van Dusen and Booth.
Thus, in determining whether a medical malpractice claim has been commenced within the med-
ical 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 rea-
sonable diligence, should lead to the discovery of the malpractice and the resulting injury. De-
pending 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 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 rea-
sonably 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. Booth, 839
N.E.2d at 1172. If such date is more than two years after the occurrence of the malpractice, the
claimant has two years within which to commence the action. Id.


       In the present case, construing the facts and reasonable inferences established by the des-
ignated evidence in favor of the non-moving party, as we must, we find that the alleged malprac-
tice (failure to perform an endocervical biopsy) occurred on February 27, 2009. On March 13,
2009, Dr. Kleckner's office assured Lisa that all was well. Over the next five months, Lisa began
to experience genital pain, discomfort, and bleeding and saw a specialist in obstetrics and gyne-
cology on September 1, 2009. He detected a mass on Lisa's cervix, and on September 3, 2009,
informed Lisa that the mass was a cancerous tumor. Approximately one week later, Dr.
Kleckner assured Lisa that no tumor was present when he had examined her and performed the
endometrial biopsy on February 27, 2009. This assurance must be considered in evaluating

                                                  7
when Lisa or David knew facts that would have reasonably led them, in the exercise of reasona-
ble diligence, to discover the alleged malpractice. See Herron, 897 N.E.2d at 451 ("Where the
plaintiff knows of an illness or injury, but is assured by professionals that it is due to some cause
other than malpractice, this fact can extend the period for reasonable discovery."); see also Halbe
v. Weinberg, 717 N.E.2d 876, 882 (Ind. 1999). It was not until mid to late February, 2011, that
Lisa's husband, Larry, became suspicious of why Dr. Kleckner hadn't found any evidence of can-
cer or a tumor when he had last seen Lisa. He promptly consulted an attorney, obtained Lisa's
medical records, and learned on March 25, 2011 that Dr. Kleckner had failed to perform the rec-
ommended endocervical biopsy. This action was commenced on July 1, 2011.


        Because Dr. Kleckner established from the designated evidence that this action was
commenced more than two years after the date of the alleged malpractice, the burden shifted to
the plaintiff to show "an issue of fact material to a theory that avoids the defense." Manley, 992
N.E.2d at 674; Herron, 897 N.E.2d at 448; Overton, 896 N.E.2d at 502 (all three cases quoting
Boggs, 730 N.E.2d at 695). The plaintiff has carried this burden. While it is clear when Lisa
became aware of her cervical cancer, it is a disputed fact when she should have, in the exercise
of reasonable diligence, discovered whether Dr. Kleckner's failure to perform the endocervical
biopsy caused or inhibited timely treatment. Moreover, the evidentiary facts, particularly Dr.
Kleckner's assurances in early September, 2009—that likely would have minimized the plain-
tiff's suspicion and inquiry—support a reasonable inference that mid to late February, 2011,
when Larry David first became suspicious of the possibility of malpractice, was the point when
Lisa or Larry David either knew of the alleged malpractice and resulting injury, or learned of
facts that, in the exercise of reasonable diligence, should have led to the discovery of the mal-
practice and the resulting injury. There are no undisputed facts that establish an earlier discovery
or trigger date. Depending on the precise date in the period from "mid to late February" when
Larry's suspicions were aroused, such discovery date may have been less than two years after the
date of the alleged malpractice, February 27, 2009. In such case, as noted above, Lisa and David
were obligated to initiate the malpractice action within a reasonable time. Booth, 839 N.E.2d at
1172.




                                                  8
        We find that the holding in Manley applies equally here. In Manley, we found the de-
fendants were not entitled to summary judgment because "there remain[ed] a genuine issue of
material fact as to both the trigger date and, if within the two-year limitation period, whether the
plaintiffs filed their complaint within a reasonable time." 992 N.E.2d at 675. The designated
materials in the present case show that Larry promptly consulted an attorney after his suspicions
arose, obtained medical information release forms, used those forms to obtain Lisa's medical
records, and then returned the medical records to his attorney for evaluation by medical experts.
We find that it was not necessarily an unreasonable delay for this action to be commenced on
July 1, 2011, and that the plaintiff may be found to have filed within a reasonable time if the
trigger date occurred within the statutory window. 2 The plaintiff has thus established "an issue
of fact material to a theory that avoids the defense." Manley, 992 N.E.2d at 674; Herron, 897
N.E.2d at 448; Overton, 896 N.E.2d at 502 (all three cases quoting Boggs, 730 N.E.2d at 695).
The defendant is not entitled to summary judgment on his defense asserting the medical malprac-
tice statute of limitations.


        We reverse the judgment of the trial court granting the defendant's motion for summary
judgment.


Rucker, David, Massa, and Rush, JJ., concur.




        2
           But if Larry's suspicions were aroused outside the statutory window, after February 27, 2011,
then the discovery or trigger date was more than two years after the alleged malpractice. If that is true,
then the action was commenced timely as a matter of law because it was within two years of such discov-
ery date. See Booth, 839 N.E.2d at 1172 (“If the discovery date is more than two years beyond the date
the malpractice occurred, the claimant has two years after discovery within which to initiate a malpractice
action.”).
                                                     9
