FOR PUBLICATION

ATTORNEYS FOR APPELLANTS:                       ATTORNEY FOR APPELLEE:

Attorney for Irmina Gradus-Pizlo, M.D.:         CYNTHIA S. ROSE
DAVID J. LANGE                                  Baxter James & Rose, LLP
Stewart & Irwin, P.C.                           Indianapolis, Indiana
Indianapolis, Indiana

Attorney for Select Specialty                                              FILED
Hospital Indianapolis, Inc.:                                          Mar 15 2012, 9:35 am
N. KENT SMITH
Hall Render Killian Heath & Lyman, P.C.                                      CLERK
                                                                           of the supreme court,
Indianapolis, Indiana                                                      court of appeals and
                                                                                  tax court




                            IN THE
                  COURT OF APPEALS OF INDIANA

IRMINA GRADUS-PIZLO, M.D. and SELECT   )
SPECIALTY HOSPITAL INDIANAPOLIS, INC., )
                                       )
     Appellants-Defendants,            )
                                       )
            vs.                        )               No. 49A02-1106-CT-503
                                       )
DONALD ACTON,                          )
                                       )
     Appellee-Plaintiff.               )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Cynthia J. Ayers, Judge
                          Cause No. 49D04-1004-CT-19137


                                      March 15, 2012

                             OPINION - FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

       Appellants-Defendants, Select Specialty Hospital Indianapolis, Inc. (Select Special

Hospital) and Irmina Gradus-Pizlo, M.D. (Dr. Gradus-Pizlo) (collectively, Appellants),

appeal the trial court’s denial of their motion of summary judgment in favor of Appellee-

Plaintiff, Donald Acton (Acton), concluding that there are genuine issues of material fact

with respect to the commencement of the statute of limitations for Acton’s Proposed

medical malpractice Complaint.

       We reverse.

                                         ISSUE

       Appellants present three issues on appeal, which we consolidate and restate as the

following single issue: Whether the trial court erred in its conclusion that genuine issues

of material fact remain whether Acton properly filed his Proposed Complaint in

accordance with the applicable statute of limitations under the Medical Malpractice Act.

                       FACTS AND PROCEDURAL HISTORY

       Myrtle Acton (Myrtle) first became a patient of Dr. Gradus-Pizlo in February

2006. On March 2, 2006, Myrtle was admitted to Methodist Hospital by Dr. Gradus-

Pizlo for diagnostic testing related to a congenital heart defect. During the course of the

evaluation, it became clear that Myrtle was a candidate for surgical correction of her

heart defect. On March 12, 2006, as part of the preparations for surgery, Dr. Gradus-

Pizlo placed Myrtle on Spironolactone, a medication used to help treat severe congestive

heart failure. On March 14, 2006, Myrtle was admitted to Select Specialty Hospital for



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additional care prior to cardiac surgery scheduled for April 13, 2006. Select Specialty

Hospital leased space on the seventh and eighth floor of Methodist Hospital. While a

patient at Select Specialty Hospital, Myrtle was seen by Dr. Samuel Hollingsworth and

her medication was continued.

      On March 29, 2006, at approximately 6:15 a.m., Myrtle suffered ventricular

tachycardia.   When Dr. Gradus-Pizlo was informed of this development, she

recommended that Myrtle be transferred to the Methodist Hospital Intensive Care Unit

(ICU) for further care. While in the elevator during transfer from Select Specialty

Hospital to Methodist Hospital ICU, Myrtle went into full cardiac arrest. She was

immediately transported back to Select Specialty Hospital where she was stabilized. At

approximately 12:54 p.m., Myrtle was transferred to Methodist Hospital.           Upon

admission at the ICU, new treatment and medication orders were entered and at that time,

the Spironolactone medication was discontinued. Myrtle subsequently died at Methodist

Hospital on April 12, 2006.

      On April 1, 2008, Acton, individually and as representative of his deceased wife,

filed a Proposed Complaint with the Indiana Department of Insurance alleging medical

malpractice by Dr. Gradus-Pizlo and Select Specialty Hospital. On February 28, 2010

and May 25, 2010, Select Specialty Hospital and Dr. Gradus-Pizlo respectively filed

separate motions for summary judgment and designation of evidence claiming that Acton

had failed to comply with the Medical Malpractice Act statute of limitations. On June 1,

2010, Acton responded by filing his memorandum in opposition and designation of

evidence. On February 16, 2011, the trial court conducted a hearing on both motions.


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On April 4, 2011, the trial court denied both motions for summary judgment finding

“genuine issues of material fact remain with regards to the trigger date of the statute of

limitations.” (Appellants’ App. p. 10).

       Appellants now file this interlocutory appeal. Additional facts will be provided as

necessary.

                             DISCUSSION AND DECISION

       Appellants file this interlocutory appeal from the trial court’s denial of their

motions for summary judgment in favor of Acton. They contend that Acton failed to file

his cause of action within the Medical Malpractice Act’s statute of limitations. We will

analyze the trial court’s denial of each motion in turn.

                                   I. Summary Judgment

       Summary judgment is appropriate only when there are no genuine issues of

material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial

Rule 56(C). In reviewing a trial court’s ruling on summary judgment, this court stands in

the shoes of the trial court, applying the same standards in deciding whether to affirm or

reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d

604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we must determine

whether there is a genuine issue of material fact and whether the trial court has correctly

applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in

the light most favorable to the non-moving party. Id. at 608. The party appealing the

grant of summary judgment has the burden of persuading this court that the trial court’s

ruling was improper. Id. When the defendant is the moving party, the defendant must


                                              4
show that the undisputed facts negate at least one element of the plaintiff’s cause of

action or that the defendant has a factually unchallenged affirmative defense that bars the

plaintiffs’ claim. Id. Accordingly, the grant of summary judgment must be reversed if

the record discloses an incorrect application of the law to the facts. Id.

       When the moving party asserts the statute of limitations as an affirmative defense

and establishes that the action was commenced outside of the statutory period, the burden

shifts to the non-moving party to establish an issue of material fact material to a theory

that avoids the affirmative defense. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692,

695 (Ind. 2000).

       We observe that in the present case, the trial court entered findings of fact and

conclusions of law in support of its judgment. Special findings are not required in

summary judgment proceedings and are not binding on appeal. Id. However, such

findings offer this court valuable insight into the trial court’s rationale for its review and

facilitate appellate review. Id.

                                     II. Dr. Gradus-Pizlo

       Dr. Gradus-Pizlo contends that the trial court erred when it denied her motion for

summary judgment because Acton’s claim of medical malpractice was filed outside the

applicable two-year statute of limitations. Specifically, she asserts that based on the

occurrence-based statute of limitations and the absence of a continuing wrong, Acton

filed his claim late.

                                   A. Statute of Limitations




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       The statute of limitations for medical malpractice claims is contained in Indiana

Code section 34-18-7-1(b):

       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.

This occurrence-based statute of limitations has been upheld as constitutional on its face

under the Indiana Constitution, Article I, Sections 12 and 23, but has also been held to be

unconstitutional as applied in certain circumstances. Garneau v. Bush, 838 N.E.2d 1134,

1141 (Ind. Ct. App. 2005), trans. denied; Martin v. Richey, 711 N.E.2d 1273, 1284-85

(Ind. 1999). The statute requires that a medical malpractice claim be filed within two

years of the negligent act and has been upheld as constitutional when applied to all

plaintiffs able to discover the alleged malpractice and injury within two years from the

occurrence. Garneau, 838 N.E.2d at 1141.

       In Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005), our supreme court created a

two-step analysis for the application of Indiana’s two-year medical malpractice limitation

period. The first stage of the analysis begins with determining whether a claimant

discovered the alleged malpractice and resulting injury, or possessed information that

would have led a reasonably diligent person to such discovery during the two-year period

after the alleged act or omission. Id. If the answer is affirmative, then the purely

occurrence-based limitation period is both applicable and constitutional, so long as the

claim can reasonably be asserted before the period expires. Id.




                                            6
       However, if a claimant does not discover the alleged malpractice and the resulting

injury, and does not possess information that would lead a reasonably diligent person to

such discovery during the two-year period, then the purely occurrence-based limitation

period is unconstitutional as applied. Van Dusen v. Stotts, 712 N.E.2d 491, 497-98 (Ind.

1999). In such cases, a second stage of analysis must then be applied to determine when

the claimant possessed enough information that, in the exercise of reasonable diligence,

should have led to the discovery of the alleged malpractice and resulting injury. Id. The

date determined is the date the two-year limitations period begins to run for such a

claimant. Id.

       In determining the discovery date (in the language of Booth) or trigger date (the

term used in the more recent decision of Herron v. Anigbo, 897 N.E.2d 444 (Ind. 2008)),

we construe all facts in favor of Acton as the nonmovant. See Garneau, 838 N.E.2d at

1141. However, the discovery date or trigger date does not depend upon when a plaintiff

knows with certainty that malpractice has occurred; a plaintiff need only know facts that

through reasonable diligence would lead to the discovery of the alleged malpractice and

resulting injury. See id.

       In his Proposed Complaint, Acton contends

       7. [Myrtle’s] medications were changed and on March 14, 2006, Dr.
       Gradus-Pizlo added Spironolactone to her other medications and noted that
       her potassium should be checked in one week.
       8. On or about March 29, 2006, [Myrtle] had an episode of ventricular
       tachycardia and it was decided that she would be transferred [from Select
       Hospital] to Methodist Hospital proper.
       9. Upon leaving the elevator, she went into full cardiac arrest and the
       resuscitation efforts were continued in the elevator returning to the 8th floor.



                                              7
       10. Her potassium level was dangerously high at 7.2 and because of the
       difficulty in resuscitation efforts, it was estimated that she was without
       oxygen for 25 minutes.
       11. The high potassium caused her cardiac arrest. The cardiac arrest
       resulted in brain damage and ultimately her death on April 12, 2006.

(Appellants’ App. p. 82).

       Acton now alleges that he could not have learned of any malpractice until Myrtle’s

death on April 12, 2006. We disagree. The malpractice, as alleged in Acton’s Proposed

Complaint, is Dr. Gradus-Pizlo’s enhancement of Myrtle’s medication regime with

Spironolactone on March 12, 2006. This new additional medication is alleged to have led

to a high potassium level, causing a cardiac arrest on March 29, 2006, which resulted in

her death two weeks later. Based on these facts, we determine the discovery date or

trigger date to be March 29, 2006, the date of Myrtle’s ventricular tachycardia and

subsequent cardiac arrest.      On that date, Myrtle’s condition brought to light the

possibility that Dr. Gradus-Pizlo might have been negligent by prescribing

Spironolactone. We reject Acton’s contention that the trigger date should be defined as

the date of the resulting injury, i.e., Myrtle’s death on April 12, 2006; as we stated before,

the possession of information leading to a reasonable possibility that malpractice has

occurred is sufficient for the statute of limitations to be triggered. See Garneau, 838

N.E.2d at 1141.

       Thus, with an alleged act of malpractice occurring on March 12, 2006, the

occurrence-based statute of limitations would have expired on Wednesday, March 12,

2008. With Acton’s discovery or trigger date placed on March 29, 2006, Acton had

sufficient information that would have led a reasonably diligent person to the discovery


                                              8
of malpractice during the remaining 1 year, 11 months, and 2 weeks of the two-year

statute of limitations period. By filing his Proposed Complaint on April 1, 2008, we

conclude that Acton’s cause is barred by the statute of limitations.

B. Continuing Wrong

       In an effort to avoid the two-year statute of limitations, Acton claims that the

doctrine of continuing wrong applies and prevents his claim from being time-barred. The

doctrine of continuing wrong applies where an entire course of conduct combines to

produce an injury. Garneau, 838 N.E.2d at 1143. When this doctrine attaches, the

statutory limitations period begins to run at the end of the continuing wrongful act.

Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind. 1991). In order to apply the doctrine, the

plaintiff must demonstrate that the alleged injury-producing conduct was of a continuous

nature. Garneau, 838 N.E.2d at 1143. The doctrine of continuing wrong is not an

equitable doctrine; rather, it defines when an act, omission, or neglect took place. Id.

       Acton specifically contends that the entire course of care provided to Myrtle by

Dr. Gradus-Pizlo throughout Myrtle’s hospitalization until the day of her death resulted

in a continuing wrong that tolled the two-year statute of limitations. However, Acton’s

alleged medical malpractice consists of a single act, the prescription of Spironolactone,

not an “entire course of conduct.” See id. Even if we characterize the daily admission of

the medication to Myrtle as a continuing course of conduct, Acton’s claim would still not

be properly filed.   Myrtle was prescribed Spironolactone on March 12, 2006. The

medication was discontinued on March 29, 2006, the day of her cardiac arrest and upon

her re-admittance at the ICU, new treatment and medication orders were entered. Thus,


                                             9
the continuing wrong ceased to exist on March 29, 2006 and the statute of limitations

commenced to run. By filing his cause of action on April 1, 2008, Acton’s cause was

time-barred by the statute of limitations. Therefore, we reverse the trial court’s denial of

summary judgment and grant summary judgment to Dr. Gradus-Pizlo.

                              III. Select Specialty Hospitals

       Applying the occurrence-based statute of limitation with respect to Select

Specialty Hospitals, we reach a similar result. Although Acton’s Proposed Complaint

does not single out a specific act of malpractice committed by Select Specialty Hospitals,

his argument focuses on the continuation of the prescribed Spironolactone medication

while Myrtle was in Select Specialty Hospital’s care. Even if the continuation of a

prescription prescribed by a doctor not in Select Specialty Hospital’s employment can be

found to constitute an act of malpractice on the part of Select Specialty Hospital, it should

be noted that Select Specialty Hospital stopped giving Myrtle the medication on March

29, 2006, the day of her cardiac arrest. At that moment, the statute of limitations

commenced. As we concluded above, Acton’s cause filed on April 1, 2008 was untimely

and barred by the application of the statute of limitations. We reverse the trial court’s

denial of summary judgment and grant summary judgment to Select Specialty Hospitals.

                                      CONCLUSION

       Based on the foregoing, we that find that the trial court improperly denied

summary judgment to Dr. Gradus-Pizlo and Selection Specialty Hospitals. We reverse

the trial court’s denial and grant summary judgment to Dr. Gradus-Pizlo and Select

Specialty Hospitals.


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     Reversed.

FRIEDLANDER, J. and MATHIAS, J. concur




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