                                                                      Nov 27 2013, 5:55 am

FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

DAVID G. FIELD                               ZACHARY J. EICHEL
BRANDON M. KIMURA                            MICHAEL L. EINTERZ
Schultz & Pogue, LLP                         Einterz & Einterz
Indianapolis, Indiana                        Zionsville, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

ANONYMOUS PHYSICIAN,                         )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )    No. 59A04-1303-MI-103
                                             )
DIANA WININGER,                              )
                                             )
      Appellee-Plaintiff,                    )
                                             )
             and                             )
                                             )
STEPHEN ROBERTSON, Commissioner,             )
Indiana Department of Insurance, and         )
DOUGLAS J. HILL, Panel Chair,                )
                                             )
      Third Party-Respondents.               )


                    APPEAL FROM THE ORANGE CIRCUIT COURT
                        The Honorable Larry R. Blanton, Judge
                           Cause No. 59C01-1211-MI-372


                                  November 27, 2013

                             OPINION - FOR PUBLICATION

BROWN, Judge
      In this interlocutory appeal, Anonymous Physician (“A.P.”) appeals the trial

court’s denial of his motion for summary judgment in a medical malpractice action filed

by Diana Wininger. The sole issue for our review is whether the trial court erred in

denying A.P.’s summary judgment motion. We reverse.

                       FACTS AND PROCEDURAL HISTORY

      In February 2007, Wininger saw A.P. for pain in her right foot. The following

month, when Wininger returned for a follow-up appointment and told A.P. that her foot

pain had worsened, A.P. recommended surgery. On March 20, 2007, A.P. shortened the

second toe on Wininger’s right foot and corrected a deformity. By July 2007, the second

toe on Wininger’s right foot was standing up at a 45 degree angle and Wininger

continued to suffer from foot pain. A.P. recommended patches and strapping to alleviate

Wininger’s continued pain. In September 2007, A.P. recommended physical therapy. By

October 2007, Wininger realized that she was not experiencing the relief she had

expected. The toe on her right foot was still standing up at a 45 degree angle, and her

foot hurt more than it did before the March 2007 surgery. Wininger testified in her

deposition that she knew by October 2007 that she should get a second medical opinion.

      In April 2009, more than two years after the surgery, Wininger went to see Dr.

Kevin Powers for the second opinion. Before seeing Dr. Powers, Wininger filled out a

patient intake form. One of the questions asked the reason for her visit, and Wininger

responded that “[A.P.] messed [her] foot up.”     Appellant’s Appendix at 79.     After

examining Wininger, Dr. Powers advised her that the second toe on her right foot was too

short and recommended an additional surgery to re-lengthen the toe.


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       On March 9, 2011, nearly two years after seeing Dr. Powers, Wininger filed a

proposed complaint for malpractice with the Indiana Department of Insurance alleging

that A.P. rendered substandard care during the initial March 20, 2007 surgery. According

to Wininger, A.P. failed to properly perform the surgery and failed to identify and treat

the problems created by his negligence.          A.P. filed a Petition for Preliminary

Determination of Law and for Summary Judgment Based on the Statute of Limitations.

Specifically, A.P. pointed out that the alleged act of malpractice occurred on March 20,

2007, and Wininger did not file her complaint until March 9, 2011, days shy of four years

after the surgery. A.P. argued that Wininger’s claims were barred by the two-year statute

of limitations set forth in the Medical Malpractice Act. The trial court denied A.P.’s

motion after a hearing and certified its order for interlocutory appeal. On A.P.’s motion,

this Court accepted jurisdiction.

                                      DISCUSSION

       When reviewing the grant or denial of summary judgment, we apply the same

standard as the trial court. Workman v. O’Bryan, 944 N.E.2d 61, 64 (Ind. Ct. App.

2011), trans. denied. Summary judgment is proper only when the designated evidence

shows that there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Id. All facts and reasonable inferences therefrom are

construed in a light most favorable to the nonmovant. Id. at 65. The statute of limitations

defense is particularly suitable as a basis for summary judgment. Id. When the moving

party asserts the statute of limitations as an affirmative defense and establishes that the

action was commenced beyond the statutory period, the burden shifts to the nonmovant to


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establish an issue of fact material to a theory that avoids the defense. Id. Any doubts as

to the existence of a material issue are resolved in favor of the nonmovant. Id.

       Ind. Code § 34-18-7-1 provides that a claim against a health care professional,

based upon health care that was provided or should have been provided, must be filed

within two years of the alleged act, omission, or neglect. This is an “occurrence-based

statute of limitations that passes constitutional muster except in cases where the patient

does not suffer symptoms that put the patient on notice that something may have gone

wrong in the course of medical treatment.” Johnson v. Gupta, 762 N.E.2d 1280, 1283

(Ind. Ct. App. 2002). In such cases, the statute of limitations is tolled until the patient

experiences symptoms that would cause a person of reasonable diligence to take action

that would lead to the discovery of the malpractice. Id.

       A.P. argues that Wininger was put on notice as early as October 2007 that

something may have gone wrong with her March 2007 surgery. Therefore, according to

A.P., the statute of limitations was not tolled in this case, and Wininger should have filed

her complaint within two years of the surgery. Wininger, on the other hand, argues that

she did not know that something may have gone wrong in the course of medical

treatment until she consulted with Dr. Powers on April 29, 2009, and learned that the

second toe of her right foot was too short.        Therefore, according to Wininger, her

complaint was timely filed in March 2011.

       Johnson, 762 N.E.2d at 1280, is instructive. There, Dr. Gupta performed a laser

hemorrhoidectomy on Johnson in 1990. Almost immediately after surgery, Johnson

became “incontinent of stool.”      Id. at 1282.    Dr. Gupta assured Johnson that her


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symptoms would disappear. Almost four years later, another doctor discovered that

Johnson’s rectal muscles had been severed during the procedure. Johnson filed a medical

malpractice complaint within two years after that diagnosis, and the trial court granted

summary judgment in favor of Dr. Gupta.

       On appeal, Johnson argued that she did not discover the malpractice until she was

informed by another doctor four years after the initial surgery that Dr. Gupta had severed

her rectal muscles and caused her incontinence. However, we declined to hold that the

statute of limitations is tolled until the patient discovers a causal link between the

physician’s actions and the patient’s injury. Id. at 1283. A plaintiff does not need to be

told malpractice occurred to trigger the statute of limitations. Brinkman v. Bueter, 879

N.E.2d 549, 555 (Ind. 2008). Rather, the statute is tolled until the patient experiences

symptoms that would cause a person of reasonable diligence to take action that would

lead to the discovery of the malpractice. Johnson, 762 N.E.2d at 1283. In Johnson, for

example, we concluded that Johnson’s fecal incontinence following a hemorrhoidectomy

was apparently related to the alleged malpractice or at the very least would cause a

person of reasonable diligence to take action that would lead to the discovery of the

malpractice. Id. See also Gyn-OB Consultants, L.L.C. v. Schopp, 780 N.E.2d 1206,

1211 (Ind. Ct. App. 2003) (holding that statute of limitations was not tolled where almost

immediately after surgery, patient experienced symptoms that should have led to the

discovery of removal of skin tags from her vagina without her consent), trans. denied.

       Here, as in Johnson and Schopp, Wininger experienced discernible symptoms

apparently related to the alleged malpractice. Specifically, a few months after the surgery


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to shorten her toe, that same toe stood up at a 45 degree angle, and Wininger continued to

suffer foot pain. By October, 2007 Wininger knew that she should get a second medical

opinion. When she saw Dr. Powers more than two years after the surgery, she explained

that the reason for her visit was that “A.P messed [her] foot up.” Appellant’s Appendix

at 79. Under these circumstances, the statute of limitations was not tolled, Wininger’s

complaint was not timely filed, and the trial court erred in denying A.P.’s summary

judgment motion.

                                    CONCLUSION

      For the foregoing reasons, we reverse the trial court’s denial of A.P.’s summary

judgment motion.

      Reversed.

MAY, J., and MATHIAS, J., concur.




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