MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               Jul 16 2018, 10:05 am

court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Michael A. Barranda                                       ANONYMOUS PHYSICIAN
Burt, Blee, Dixon, Sutton & Bloom, LLP                    Scott P. Whonsetler
Fort Wayne, Indiana                                       Whonsetler & Johnson, PLLC
                                                          Louisville, Kentucky


                                                          ATTORNEYS FOR APPELLEE
                                                          ANONYMOUS HOSPITAL 1
                                                          Jason A. Scheele
                                                          Lauren R. Deitrich
                                                          Rothberg Logan & Warsco LLP
                                                          Fort Wayne, Indiana


                                                          ATTORNEY FOR APPELLEE
                                                          ANONYMOUS HOSPITAL 2
                                                          Joseph D. McPike, II
                                                          Zeigler Cohen & Koch
                                                          Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Memorandum Decision 18A-PL-440 | July 16, 2018                     Page 1 of 11
      Eric Musselman,                                           July 16, 2018
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                18A-PL-440
              v.                                                Appeal from the Allen Superior
                                                                Court
      Anonymous Physician, et al.,                              The Honorable Craig J. Bobay,
      Appellees-Defendants.                                     Special Judge
                                                                Trial Court Cause No.
                                                                02D03-1706-PL-187



      Bailey, Judge.



                                           Case Summary
[1]   Eric Musselman (“Musselman”) filed a proposed complaint with the Indiana

      Department of Insurance alleging that Anonymous Physician, Anonymous

      Hospital 1, and Anonymous Hospital 2 (collectively, the “Health Care

      Providers”) committed medical malpractice.1 The Health Care Providers

      sought summary judgment in the Allen Superior Court, alleging that the

      complaint was time-barred. Following a hearing, the trial court entered

      summary judgment for the Health Care Providers, and denied Musselman’s




      1
       We note that the appendix does not include a Chronological Case Summary or an unredacted version of
      Musselman’s amended complaint. However, we discern from the record that Musselman also alleged that
      Anonymous Medical Group 1 committed medical malpractice; it appears from the appealed order that, at
      some point, this party was dismissed pursuant to Indiana Trial Rule 41(E).

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-440 | July 16, 2018               Page 2 of 11
      motion to reconsider. Musselman now appeals, challenging the trial court’s

      decision to grant summary judgment for the Health Care Providers.


[2]   We affirm.



                            Facts and Procedural History
[3]   In October 2013, Musselman went to an emergency room, reporting painful

      urination. Musselman was fourteen years old at the time. A physician ordered

      a CT scan, which revealed the presence of a “retained wire or catheter” inside

      Musselman. App. Vol. II at 18. The physician opined that the unidentified

      foreign object was unrelated to Musselman’s pain, and that the object was

      “probably something left over” from when Musselman was an infant. Id. at 21.


[4]   Musselman’s parents were concerned that the object could move. They

      followed up with Musselman’s pediatrician, Anonymous Physician, in

      November 2013. Anonymous Physician discussed the CT scan and advised

      against further treatment. Musselman’s parents were informed that it would be

      dangerous to surgically identify or remove the object, as it was close to

      Musselman’s heart. They were also advised not to pursue an MRI to identify

      the object, which could be dangerous if the object was a wire and not a plastic

      catheter. Anonymous Physician ordered a second CT scan, which indicated

      that the object had not moved, and the results of that scan were left in a

      voicemail message for Musselman’s parents in early 2014.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-440 | July 16, 2018   Page 3 of 11
[5]   Through October 2015, Musselman remained in the care of Anonymous

      Physician, who continued to assure the family that “everything was fine,” and

      that “no further treatment can or should be done with respect to the foreign

      object.” Id. at 49. On February 3, 2017, Musselman filed a proposed complaint

      for damages with the Indiana Department of Insurance, alleging that the Health

      Care Providers committed medical malpractice. In his amended complaint,

      Musselman alleged that he underwent a procedure as an infant during which a

      catheter was inserted, and that the Health Care Providers “failed to remove all

      of the catheter, and failed to otherwise identify the missing piece of catheter.”

      Id. at 16-17. Musselman claimed that he was permanently injured, and sought

      compensation for physical and emotional damages as well as medical expenses.


[6]   In accordance with Indiana Code Section 34-18-11-1, the Health Care Providers

      pursued summary judgment in the Allen Superior Court, asserting that

      Musselman’s proposed complaint was filed outside the statute of limitations.

      Following a hearing, the trial court granted summary judgment in favor of the

      Health Care Providers. Thereafter, Musselman filed his Plaintiff’s Motion to

      Correct Error and Motion to Reconsider, which the trial court denied.


[7]   Musselman now appeals.



                                 Discussion and Decision
[8]   In general, we review a trial court’s ruling on a motion to correct error for an

      abuse of discretion, which occurs when the court’s decision is clearly against


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-440 | July 16, 2018   Page 4 of 11
       the logic and effect of the facts and circumstances before it. Sims v. Pappas, 73

       N.E.3d 700, 705 (Ind. 2017). To determine whether the court abused its

       discretion by denying Musselman’s motion to correct error, we must determine

       whether the court erred by entering summary judgment in favor of the Health

       Care Providers. Summary judgment is appropriate 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 matter of law.” Ind.

       Trial Rule 56(C). We review de novo whether the trial court properly granted

       summary judgment. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[9]    “Indiana’s distinctive summary judgment standard imposes a heavy factual

       burden on the movant to demonstrate the absence of any genuine issue of

       material fact on at least one element of the claim.” Siner v. Kindred Hosp. Ltd.

       P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016). Summary judgment is inappropriate

       if the movant fails to carry this burden. Manley v. Sherer, 992 N.E.2d 670, 673

       (Ind. 2013). However, if the movant succeeds, the burden shifts to the non-

       moving party to designate contrary evidence demonstrating the existence of a

       genuine issue of material fact. Id. In conducting our review, we look only to

       the designated evidence, T.R. 56(H), and construe all factual inferences in favor

       of the party who did not seek summary judgment, Manley, 992 N.E.2d at 673.


[10]   In Indiana, a plaintiff generally must bring a claim of medical malpractice

       “within two (2) years after the date of the alleged act, omission, or neglect.”

       Ind. Code § 34-18-7-1. Nonetheless, this occurrence-based “trigger date will be

       tolled as a matter of law when the alleged malpractice was not reasonably

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-440 | July 16, 2018   Page 5 of 11
       discoverable within the limitations period.” Herron v. Anigbo, 897 N.E.2d 444,

       450-51 (Ind. 2008). Indeed, this tolling occurs where—as here—the alleged

       “injury remains latent for an extended period after the alleged malpractice.” Id.

       at 451. In these cases, the trigger date is established “when it is clear that the

       plaintiff knew, or should have known, of the alleged symptom or condition, and

       [of] facts that in the exercise of reasonable diligence would lead to discovery of

       the potential of malpractice.” Id. at 450.


[11]   “Like many legal issues turning on ‘reasonable’ conduct, the determination of

       the trigger date may raise issues of fact but often may be resolved as a matter of

       law.” Id. (citing Van Dusen v. Stotts, 712 N.E.2d 491, 499 (Ind. 1999)). Indeed,

       “the trigger date is established as a matter of law when a patient is told by a

       doctor of the ‘reasonable possibility, if not a probability, that the specific injury

       was caused by a specific act at a specific time.’” Id. at 450 (quoting Van Dusen,

       712 N.E.2d at 499). In these circumstances,


               generally a plaintiff is deemed to have sufficient facts to require
               him to seek promptly any additional medical or legal advice
               needed to resolve any remaining uncertainty or confusion he may
               have regarding [1] the cause of his injury and [2] any legal
               recourse he may have, and his unexplained failure to do so
               should not excuse a failure to timely file a claim.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-440 | July 16, 2018   Page 6 of 11
       Van Dusen, 712 N.E.2d at 499. Furthermore, when the patient is a child, we

       impute to the child “the parents’ knowledge of facts” pertinent to triggering the

       two-year period. Ledbetter v. Hunter, 842 N.E.2d 810, 815 (Ind. 2006).2


[12]   In granting summary judgment for the Health Care Providers, the trial court

       concluded that the two-year statute of limitations began to run in 2013, when

       Musselman’s parents learned of the foreign object. On appeal, Musselman

       argues that there is insufficient evidence to establish a trigger date as a matter of

       law because his parents could not determine the “nature of the object, who

       placed it, and who was responsible for its removal.” Appellant’s Br. at 8.


[13]   For support, Musselman directs us to Zelman v. Cent. Ind. Orthopedics, P.C., 88

       N.E.3d 798 (Ind. Ct. App. 2017), trans. denied. There, a patient experienced

       post-operative pain for several years, and initially declined to undergo an

       intrusive exploratory surgery that might have identified the source of the pain.

       Zelman, 88 N.E.3d at 799-802. The patient later underwent the exploratory

       surgery, and learned that her first surgeon may have committed malpractice.

       Id. at 800-01. The patient filed a proposed complaint alleging medical

       malpractice within two years of the exploratory surgery, but more than four




       2
         Separate from caselaw, generally, when a cause of action for a tort claim has accrued while the victim is a
       minor, the statute of limitations is tolled until the victim reaches the age of majority. See I.C. § 34-11-6-1 (“A
       person who is under legal disabilities when the cause of action accrues may bring the action within two (2)
       years after the disability is removed.”). Here, Musselman brought his action upon turning eighteen. Yet, our
       legislature has created a more stringent framework for medical malpractice claims, providing only that “a
       minor less than six (6) years of age has until the minor’s eighth birthday to file” an accrued claim. I.C. § 34-
       18-7-1.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-440 | July 16, 2018                         Page 7 of 11
       years after the onset of post-operative pain. Id. at 799-802. Concluding that the

       action was untimely, the trial court granted summary judgment in favor of the

       surgeon. Id. at 802. This Court reversed, determining that a genuine issue of

       material fact existed as to when the patient’s “pain and diligent pursuit would

       have led her to discover that medical malpractice was the cause.” Id. at 804.


[14]   Whereas, in Zelman, the patient experienced ongoing post-operative pain of

       unknown origin, here, the undisputed evidence indicates that a physician

       informed Musselman’s parents that there was a foreign object inside their son.

       A second CT scan confirmed the presence of the object, and Musselman’s

       parents were informed that the object appeared to be a wire or a catheter left

       behind “at some time during [Musselman’s] care and treatment.” App. Vol. II

       at 49. This was sufficient information to put Musselman’s parents on notice of

       the “reasonable possibility, if not a probability,” that medical malpractice had

       occurred. Van Dusen, 712 N.E.2d at 499. By knowing of the presence of the

       object—irrespective of whether it has ever been feasible to definitively identify

       the object—Musselman’s parents could have, with reasonable diligence,

       explored the possibility of legal recourse. Indeed, it is telling that, at the time he

       filed the instant claim, Musselman appears to have had no more material

       information than his parents had in 2013. Thus, contrary to Musselman’s

       assertion, his parents need not have “ignore[d] Anonymous Physician’s advice”

       and underwent “dangerous medical treatment” to pursue a claim of medical

       malpractice. Appellant’s Br. at 13.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-440 | July 16, 2018   Page 8 of 11
[15]   Musselman next argues that the statute of limitations should be tolled by the

       doctrine of continuing wrong. This doctrine “is not an equitable doctrine;

       rather, it defines when an act, omission, or neglect took place.” Boggs v. Tri-

       State Radiology, Inc., 730 N.E.2d 692, 699 (Ind. 2000). “For the doctrine to

       apply, the physician’s conduct must be more than a single act.” Anonymous

       Physician v. Rogers, 20 N.E.3d 192, 198 (Ind. Ct. App. 2014), trans. denied. That

       is, the doctrine applies “where an entire course of conduct combines to produce

       an injury.” Boggs, 730 N.E.2d at 699. “When this doctrine attaches, the statute

       of limitations does not begin to run until the wrongful act ceases, and at that

       point the plaintiff may bring the claim within the normal statutory period.” Id.


[16]   Here, however, the act that produced the alleged injury—the abandonment of

       the foreign object—was an isolated event, not part of an entire course of

       conduct. Thus, the doctrine of continuing wrong does not apply. See Babcock v.

       Lafayette Home Hosp., Woman’s Clinic, 587 N.E.2d 1320, 1323 (Ind. Ct. App.

       1992) (finding the doctrine inapplicable where the alleged injury was the

       retention of a surgical sponge inside the patient, determining that leaving the

       sponge behind and, later, misreading a chest x-ray were “isolated” events).


[17]   Finally, Musselman asserts that a defense based upon the statute of limitations

       should not be available to the Health Care Providers because of the equitable

       doctrine of fraudulent concealment. Under this doctrine, “a person is estopped

       from asserting the statute of limitations as a defense if that person, by deception

       or violation of a duty, has concealed material facts from the plaintiff and

       thereby prevented discovery of a wrong.” Boggs, 730 N.E.2d at 698. When the

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-440 | July 16, 2018   Page 9 of 11
       doctrine of fraudulent concealment applies, it imposes a “duty of diligence” on

       the plaintiff to act within a reasonable time following the actual discovery of the

       malpractice or the reasonable opportunity to discover the malpractice. Hughes

       v. Glaese, 659 N.E.2d 516, 519 (Ind. 1995).


[18]   Musselman directs our attention to evidence indicating that Anonymous

       Physician gave assurances that Musselman was fine. Musselman argues that

       Anonymous Physician “downplayed the nature of the injuries” and

       “dissuaded” the Musselmans from taking further action to identify the object

       lodged close to Musselman’s heart. Appellant’s Br. at 12. Yet, for the doctrine

       to apply, there must be evidence of active or constructive concealment, see

       Boggs, 730 N.E.2d at 698, and, here, the designated evidence contains no

       indication that any of the Health Care Providers concealed material

       information. Rather, the evidence indicates that Anonymous Physician

       discussed the first scan with Musselman’s parents, ordered a second scan, and

       did not conceal the results of either scan. Thus, as there was no concealment

       preventing the discovery of a wrong, this doctrine is inapplicable. Moreover, to

       the extent that Musselman is arguing that Anonymous Physician constructively

       concealed information by failing to discover the foreign object sooner, it was

       unreasonable to wait more than two years to initiate the malpractice claim. See

       Cacdac v. Hiland, 561 N.E.2d 758, 759 (Ind. 1990) (determining that a delay of

       twenty-two months in bringing a medical malpractice claim was unreasonable).


[19]   We ultimately conclude, as a matter of law, that Musselman’s two-year period

       to bring a claim of medical malpractice began running in 2013 when his parents

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-440 | July 16, 2018   Page 10 of 11
       learned of the foreign object. At that point, the family had enough information

       to require them to seek further medical or legal advice. See Van Dusen, 712

       N.E.2d at 499. Thus, because Musselman filed his complaint in 2017, the

       action was untimely, and the Health Care Providers were entitled to summary

       judgment. We accordingly conclude that the court did not abuse its discretion

       by denying Musselman’s motion to correct error because the court did not err in

       granting summary judgment in favor of the Health Care Providers.


[20]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-440 | July 16, 2018   Page 11 of 11
