                                                                        FILED
                                                                    Jun 26 2020, 8:27 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
John P. Young                                              David C. Jensen
Young & Young                                              James L. Hough
Indianapolis, Indiana                                      Eichhorn & Eichhorn, LLP
                                                           Hammond, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Teresa Blackford,                                          June 26, 2020
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           19A-CT-2054
        v.                                                 Appeal from the Vanderburgh
                                                           Circuit Court
Welborn Clinic,                                            The Honorable David D. Kiely,
Appellee-Defendant                                         Judge
                                                           Trial Court Cause No.
                                                           82C01-1804-CT-2434



Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020                           Page 1 of 23
[1]   Teresa Blackford was tested by Welborn Clinic (“Welborn”) in 2003 for

      hepatitis as a possible cause of her skin condition, Lichens Planus. At that time,

      Welborn allegedly informed Blackford that the test results were negative for

      hepatitis. In 2014, Blackford learned that the 2003 test results had actually been

      positive, and she sued Welborn for medical malpractice. Blackford now appeals

      the trial court’s order granting Welborn’s motion for summary judgment and

      denying Blackford’s motion for partial summary judgment, arguing that the

      five-year nonclaim limitation imposed by the Indiana Business Trust Act

      (IBTA) should be tolled because Welborn’s fraudulent concealment prevented

      her from discovering she had a cause of action any sooner.


[2]   Finding that the nonclaim limitation is tolled due to Welborn’s fraudulent

      concealment, we reverse and remand (1) with instructions to enter partial

      summary judgment in favor of Blackford on the issue of the timeliness of the

      complaint under the IBTA; and (2) for further proceedings.


                                                      Facts     1




[3]   In 1963, Welborn was created as a business trust under the IBTA with its

      principal place of business in Evansville. Blackford first became a patient at

      Welborn in 1999. Sometime in 2003, Blackford sought treatment from Welborn




      1
       A virtual remote oral argument was held on May 22, 2020. We thank the parties for their excellent oral and
      written presentations, especially in light of the new format and unusual circumstances.



      Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020                              Page 2 of 23
      for Lichens Planus, an inflammatory skin condition.2 Because hepatitis can be

      an underlying cause of Lichens Planus, Welborn tested Blackford for hepatitis

      on October 1, 2003. Shortly thereafter, Welborn informed Blackford that the

      test results were negative and that hepatitis was therefore not a cause of her

      Lichens Planus. For the next several years, Blackford continued to see providers

      at Welborn to seek treatment for and determine the cause of her Lichens

      Planus.


[4]   In the fall of 2008, Welborn sold its assets to Deaconess Clinic, Inc., and the

      medical clinic previously owned and operated by Welborn was renamed

      Deaconess Clinic. Following the sale, on October 1, 2008, Welborn changed its

      name to WC Liquidating Corp. On June 30, 2009, WC Liquidating Corp. gave

      notice under the IBTA that it was surrendering its authority to transact business

      in Indiana.


[5]   Sometime in 2014, Blackford’s health significantly worsened, and she “became

      ill with places on her arms and . . . didn’t feel very good.” Appellant’s App.

      Vol. II p. 28. Blackford’s new family physician3 sent her to another doctor, who

      ran some tests and determined that Blackford was positive for hepatitis C. To

      confirm that the original test performed in 2003 showed that Blackford was



      2
       Blackford was primarily treated by Dr. Naji Tawfik, M.D., a Welborn employee. The original proposed
      complaint that was filed with the Indiana Department of Insurance (IDOI) named Dr. Tawfik and Deaconess
      Clinic, Inc., the group that purchased Welborn in 2008, as defendants in addition to Welborn.
      3
        The record does not reveal when, precisely, the patient-physician relationship between Blackford and
      Welborn ended. We will assume that, at the latest, it ended the day Welborn surrendered its authority to
      transact business on June 30, 2009.

      Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020                               Page 3 of 23
      negative for hepatitis, Blackford signed a release for her medical records from

      Welborn to view the 2003 test results and share them with her new doctor. In

      November 2014, Blackford received the records from Welborn, which stated

      that the 2003 test showed she had been “highly reactive” and positive for

      hepatitis, not negative. Id. at 29.


[6]   Over the eleven years that had elapsed between the original hepatitis test in

      2003 and the one in 2014, Blackford exhibited no symptoms of hepatitis and

      had received no treatment for hepatitis; in fact, she had been administered

      steroid treatments that are contraindicated for a patient who has hepatitis. See

      Appellant’s App. Vol. II p. 28-29, 34, 37. Once discovered, the hepatitis was

      successfully treated in 2014, but due to the lack of earlier treatment, Blackford

      developed cirrhosis of the liver and now must undergo regular testing every two

      years due to a heightened risk for developing liver cancer. Blackford was also

      diagnosed with cryoglobulinemia and xanthelasma, two conditions which, like

      the cirrhosis and Lichens Planus, were likely caused by the hepatitis. Blackford

      believes that “had [she] received proper treatment” and “had [she] been told of

      the Hepatitis C positive result before 2014,” she “could have avoided these . . .

      medical conditions.” Id. at 38. Blackford also transmitted hepatitis to her

      husband.


[7]   At the time of the alleged malpractice, Welborn was a qualified provider under

      the Indiana Medical Malpractice Act and had filed the required proof of

      financial responsibility and paid the required surcharge to the IDOI. See

      Appellant’s App. Vol. II p. 46. This financial responsibility took the form of a

      Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020        Page 4 of 23
       malpractice liability insurance policy with ProAssurance Indemnity Company,

       Inc. (“ProAssurance”), for coverage up to $250,000.00 per occurrence. Id.


[8]    Upon discovering that the 2003 test results had not been accurately disclosed,

       Blackford filed a complaint against Welborn for medical malpractice with the

       IDOI on March 13, 2015. The case was reviewed by a Medical Review Panel4

       and was then filed in the trial court on April 27, 2018.


[9]    On February 19, 2019, Welborn filed a motion for summary judgment alleging

       that, because Blackford’s claim was filed over five years after Welborn’s

       business trust dissolved, the claim is time barred by the IBTA’s nonclaim

       statute, Indiana Code section 23-5-1-11. Blackford filed a motion for partial

       summary judgment on March 21, 2019, arguing that Welborn was equitably

       estopped from relying on the five-year claim limitation because Welborn’s

       fraudulent concealment prevented her discovery of the claim within that time

       frame.


[10]   A hearing on both motions was held on June 4, 2019. The next day, the trial

       court issued an order granting Welborn’s motion and denying Blackford’s

       motion. On August 2, 2019, Blackford requested that the July 5 order be made




       4
        Blackford states in her brief that the Medical Review Panel determined that Welborn committed medical
       malpractice, but the panel’s conclusions are not included in the record on appeal, so we have no way of
       knowing what, precisely, was determined.

       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020                             Page 5 of 23
       final and appealable, which the trial court granted on August 12, 2019.

       Blackford now appeals.


                                     Discussion and Decision
[11]   In pertinent part, Blackford argues that the five-year nonclaim limitation

       imposed by Indiana Code section 23-5-1-11 should be tolled because Welborn’s

       fraudulent concealment prevented her from discovering she had a cause of

       action within the five-year period.


                                        I. Standard of Review
[12]   Our standard of review for summary judgment is well established:


               We review a trial court’s order granting summary judgment de
               novo. And we apply the same standard as the trial court:
               summary judgment is appropriate only where the moving party
               demonstrates there is no genuine issue of material fact and he is
               entitled to judgment as a matter of law. If the moving party
               carries his burden, the non-moving party must then demonstrate
               the existence of a genuine issue of material fact in order to
               survive summary judgment. Just as the trial court does, we
               resolve all questions and view all evidence in the light most
               favorable to the non-moving party, so as to not improperly deny
               him his day in court.


       Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1259 (Ind. 2014) (internal

       citations omitted). “A genuine issue of material fact exists where facts

       concerning an issue that would dispose of the issue are in dispute or where the

       undisputed material facts are capable of supporting conflicting inferences on



       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020           Page 6 of 23
       such an issue.” Robbins v. Trustees of Ind. Univ., 45 N.E.3d 1, 6 (Ind. Ct. App.

       2015).


                     II. Fraudulent Concealment and the IBTA
[13]   Blackford’s primary argument on appeal is that the five-year nonclaim

       limitation in the IBTA is not enforceable to bar her claim where Welborn, as

       the entity benefitting from the statute, committed fraud that prevented

       Blackford from discovering that she had a cause of action within the five-year

       period.


[14]   The difference between a statute of limitations and a nonclaim statute (or a

       statute of repose) is a critical one in this case. Our Supreme Court has explained

       this distinction as follows:


                [A] nonclaim statute . . . grants to every person having a claim of
                any kind or character against a [defendant], the right to file the
                same in the court having jurisdiction thereof and have the same
                adjudicated, provided such claim is filed within the time specified
                in the statute. Unless such claim is filed within the time so
                allowed by the statute, it is forever barred. The time element is a
                built-in condition of the said statute and is of the essence of the
                right of action. Unless the claim is filed within the prescribed
                time set out in the statute, no enforceable right of action is
                created.


                While such statutes limit the time in which a claim may be filed
                or an action brought, they have nothing in common with and are
                not to be confused with general statutes of limitation. The former
                creates a right of action if commenced within the time prescribed
                by the statute, whereas the latter creates a defense to an action


       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020          Page 7 of 23
               brought after the expiration of time allowed by law for the
               bringing of such an action.


       Estate of Decker v. Farm Credit Servs. of Mid-Am., ACA, 684 N.E.2d 1137, 1138-39

       (Ind. 1997) (first alteration in original) (internal quotations omitted) (quoting

       Donnella v. Crady, 135 Ind. App. 60, 185 N.E.2d 623 (1982)).


[15]   Welborn moved for summary judgment, and the trial court granted its motion,

       on the basis that Blackford’s claim against Welborn was filed after the IBTA’s

       five-year nonclaim limitation had expired. In response, Blackford filed a motion

       for partial summary judgment, arguing that the five-year limit should be tolled

       where Welborn had committed fraudulent concealment and that Welborn

       should be equitably estopped from invoking the nonclaim statute to benefit

       from its own fraud. The relevant inquiry, then, is two-fold: first, whether the

       IBTA’s nonclaim statute may be tolled in cases of fraudulent concealment; and

       second, if so, whether the designated evidence conclusively demonstrates that

       Welborn committed fraudulent concealment, thereby tolling the nonclaim

       limitation period.


                                        The IBTA’s Nonclaim Statute

[16]   When a business trust authorized by the IBTA has surrendered its authority to

       transact business, the Act imposes a five-year period wherein the defunct

       business trust must continue to defend any claims filed against it:


               (a)   Any business trust, domestic or foreign, which has
               obtained authority under this chapter to transact business in
               Indiana may surrender its said authority at any time . . . .

       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020          Page 8 of 23
               (b)     During a period of five (5) years following the effective
               date of such withdrawal, the business trust shall nevertheless be
               entitled to convey and dispose of its property and assets in this
               state, settle and close out its business in this state, and perform
               any other act or acts pertinent to the liquidation of its business,
               property, and assets in this state, and to prosecute and defend all
               suits filed prior to the expiration of said five (5) year period
               involving causes of action prior to the effective date of such
               withdrawal or arising out of any action or transactions occurring
               during said five (5) year period in the course of the liquidation of
               its business, property, or assets.


       I.C. § 23-5-1-11.


[17]   Blackford does not dispute, and in fact concedes, that she did not file her claim

       against Welborn within the five-year period imposed by the IBTA.5 Rather, she

       asserts that the IBTA’s five-year limitation is tolled due to Welborn’s alleged

       fraud in its inaccurate disclosure of Blackford’s hepatitis test results. In

       response, Welborn emphasizes the plain language of the statute and its mere

       nature as a nonclaim statute or statute of repose as “set[ting] a distinct, outside

       limit as to when any claim involving a business trust which is being dissolved

       can be filed,” and that the five-year deadline “is based upon the surrendering of

       the right to transact business, and not upon the occurrence of the facts

       underlying a claim.” Appellee’s Br. p. 16 (emphasis in original).




       5
        The five-year window from when Welborn surrendered its authority to transact business ended on June 30,
       2014. Blackford then filed her claim with the IDOI on March 13, 2015.

       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020                            Page 9 of 23
[18]   Whether fraud may toll the five-year nonclaim filing period under the IBTA is

       an issue that has not yet been specifically addressed by our courts, though we

       have discussed the effect of fraud on other nonclaim statutes. “We have said

       before that fraud may toll the filing period of a non-claim statute.” Alldredge, 9

       N.E.3d at 1264 (citing Gayheart v. Newnam Foundry Co., 271 Ind. 422, 425, 393

       N.E.2d 163, 166 (1979)). In Alldredge, our Supreme Court considered whether

       fraudulent concealment could serve to toll the running of the statute of

       limitations as well as the statutory filing period for the nonclaim statute under

       the Wrongful Death Act. The Court held that the fraudulent concealment

       statute, Indiana Code section 34-11-5-1, applied to toll the Wrongful Death

       Act’s two-year filing period under its nonclaim statute if the necessary factual

       showing is made to demonstrate fraudulent concealment. In reaching that

       conclusion, the Court considered precedent regarding fraudulent concealment’s

       effect on tolling the Wrongful Death Act’s statute of limitations, see Guy v.

       Schuldt, 236 Ind. 101, 138 N.E.2d 891 (1956), and estoppel due to fraud as

       applied to the nonclaim statute in the Federal Employer’s Liability Act, see Glus

       v. Brooklyn E. Dist. Terminal, 359 U.S. 231 (1959). The Court explained its

       reasoning, in part, as follows:


               Taken together, Guy and Glus make clear that neither an ordinary
               statute of limitation nor a temporal condition precedent [a
               nonclaim limitation] will bar a plaintiff’s claim when the delay in
               filing was due to the tortfeasor’s fraud. Guy tells us that if the
               legislature intends to create a time limitation that will not be
               tolled by fraud, it must do so expressly. Glus adds that courts
               should presume fraud will toll any time period, be it statute of


       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020         Page 10 of 23
               limitation or condition precedent, and the burden is on the
               tortfeasor to demonstrate contrary legislative intent.


                                                          ***


               Public policy considerations further bolster our conclusion. Were
               we to hold otherwise, we would be incentivizing fraud and thus
               thwarting the obvious purpose of the Fraudulent Concealment
               Statute. And our decision today is consistent with that of courts
               in other jurisdictions, which have routinely found fraud may toll
               a statutory filing period even when it is a condition precedent to
               the existence of the claim rather than a statute of limitation.


       Alldredge, 9 N.E.3d at 1263-6 (emphases added).


[19]   Here, we are faced with a similarly novel issue as the Court in Alldredge—

       whether exceptions for fraud under applicable statutes of limitations and other

       nonclaim statutes may be extended, for the first time, to a specific nonclaim

       statute. We likewise find that the same logic our Supreme Court employed in

       Alldredge applies seamlessly here to similarly allow tolling the IBTA’s nonclaim

       limitation statute in cases of fraudulent concealment. 6


[20]   As an initial matter, we note the absence of any language in the IBTA expressly

       indicating that the time limitation contained therein should not be tolled by

       fraud. See Alldredge, 9 N.E.3d at 1264. As our Supreme Court wrote in Guy,




       6
         Here, however, the only real difference is that the relevant reference point for tolling the statute of
       limitations for medical malpractice claims comes from the common law, rather than Indiana’s fraudulent
       concealment statute.

       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020                               Page 11 of 23
       when determining whether an equitable exception to a statutory time limit may

       be found in cases of fraud, be it a statute of limitation or repose, we will not

       presume that the legislature intended to prevent such an exception unless

       explicitly stated in the statute itself:


               The question here is not, are there allegations of fraudulent
               concealment in the complaint, but rather, is the party entitled to
               plead and prove such a defense (if the facts exist) against the
               statute of limitations? Fraud vitiates anything. Courts will not
               uphold fraud, or presume the Legislature intended to do so by
               allowing one in a confidential relationship to conceal an injury
               done another until the statute of limitations has run. The
               language of the statute should be so plain that there is no
               question as to its meaning if the Legislature intends to give a
               wrongdoer the advantage and benefit of his fraudulent
               concealment of an injury done another.


       Guy, 236 Ind. at 111, 138 N.E.2d at 896 (emphasis added).


[21]   Welborn is correct to the extent that it emphasizes the plain text of the IBTA,

       and that it states simply that a defunct business trust will not be obligated to

       defend “any” claims against it after the expiration of the five-year period. I.C. §

       23-5-1-11(b). But as Guy and Alldredge clarify, the relevant inquiry is not

       whether the plain language of the statute expressly allows for an exception due

       to fraud, but rather, whether the statute expressly forbids one. Here, the IBTA

       language shows no indication that the legislature intended to prevent traditional

       equitable principles regarding fraud from applying to the time constraints set in

       section 23-5-1-11(b), and it is not our province to read such a prohibition into

       the statute when it otherwise does not exist.

       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020         Page 12 of 23
[22]   Next, Blackford argues that the same reasoning that justifies tolling the statute

       of limitations in cases of fraudulent concealment also applies to nonclaim

       statutes in cases of fraud, and thus justifies an exception to the application of

       the IBTA’s five-year claim limitation period. See, e.g., Alldredge, 9 N.E.3d at

       1261-63 (applying equitable principles governing fraud’s ability to toll the

       statute of limitations to nonclaim statutes). We agree.


[23]   The doctrine of fraudulent concealment is an equitable remedy that bars a

       defendant from asserting the statute of limitations as a defense if the defendant

       “prevented a plaintiff from discovering an otherwise valid claim, by violation of

       duty or deception.” Garneau v. Bush, 838 N.E.2d 1134, 1142 (Ind. Ct. App.

       2005). Upon a sufficient factual showing, fraudulent concealment may toll the

       running of the two-year limitation period in medical malpractice cases7 until

       either (1) the physician-patient relationship is terminated, or (2) the patient

       discovered, or in the exercise of reasonable diligence should have discovered,

       the physician’s alleged malpractice.8 Id. at 1141; see also Ind. Code § 34-11-5-1

       (“If a person liable to an action conceals the fact from the knowledge of the

       person entitled to bring the action, the action may be brought at any time

       within the period of limitation after the discovery of the cause of action.”).




       7
           Ind. Code § 34-18-7-1(b).
       8
         Regardless of whether the fraudulent concealment is active or passive, “[u]nder either strand of the
       doctrine, the patient must bring his or her claim within a reasonable period of time after the statute of
       limitations begins to run.” Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 698 (Ind. 2000).

       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020                                  Page 13 of 23
[24]   The equitable principles and exceptions for fraud that serve to toll the applicable

       statute of limitations justify a parallel exception for the IBTA’s nonclaim

       statute. To allow otherwise would permit a now-defunct business trust to

       fraudulently conceal information that would reveal a cause of action until the

       five-year nonclaim limit had expired, at which point the former business entity

       would be off the hook—which is precisely the type of incentive the doctrine of

       fraudulent concealment, as applied to statutes of limitation, is intended to

       prevent.


[25]   Welborn argues that Alldredge is “inapposite” here because it deals with the

       Wrongful Death Act, rather than a medical malpractice claim or a claim against

       a defunct business trust. Appellee’s Br. p. 17. But when Alldredge was decided,

       the specific question of whether the Wrongful Death Act’s nonclaim statute

       could be tolled by fraud was a novel one, previously unaddressed by our

       courts—the same position we find ourselves in today with regards to the

       IBTA’s nonclaim statute. As a result, the Alldredge Court relied on decisions

       involving fraud tolling other nonclaim statutes, as well as fraud’s ability to toll

       statutes of limitation and general public policy considerations, which justified

       the Court’s decision to explicitly extend estoppel due to fraud to the Wrongful

       Death Act’s nonclaim statute. In conducting a similar path of analysis today,

       we find that Alldredge provides ample support for allowing the IBTA’s nonclaim

       limitation to be tolled in cases of fraudulent concealment.


[26]   Welborn also relies heavily on cases in which Indiana courts interpret Illinois

       law for the proposition that “at the end of the five-year period, the trust ceases

       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020         Page 14 of 23
       to exist and is no longer a recognized entity; it can bring no claims, nor can it

       have any claims brought against it.” Appellee’s Br. p. 15 (emphasis added). 9

       But we do not need to turn to cases interpreting Illinois law to reach such a

       conclusion, as the language of section 23-5-1-11(b) clearly states as much.

       Instead, what Blackford argues, and what Welborn fails to provide any

       persuasive counterargument for, is that an equitable exception to this limitation

       for estoppel due to fraud should be allowed under the IBTA as it has been with

       regards to other nonclaim statutes in Indiana.


                                              Fraudulent Concealment

[27]   Importantly, however, in order for this exception to apply, there must be a

       sufficient factual demonstration of fraudulent concealment. See Alldredge, 9

       N.E.3d at 1264. Blackford argues that Welborn committed fraudulent

       concealment when it failed to disclose to her the correct results of her hepatitis

       test in 2003 and continued treating her and seeking the underlying cause for her

       Lichens Planus as if she was negative for hepatitis.


[28]   Fraudulent concealment may be either active or passive. A physician’s actions

       amount to active concealment if they are “calculated to mislead and hinder” a




       9
         Welborn also quotes “survives” and “winds up” as language appearing in the statute—specifically, that
       “[t]he IBTA establishes a five (5) year period, during which the trust entity ‘survives,’ in order to ‘wind up’ its
       affairs,” appellee’s br. p. 15, and cites to Indiana Code § 23-5-1-11(b) as the source of that language.
       However, neither of these phrases appear in the statute, whether in subsection (b) or otherwise. Although this
       difference in language is ultimately trivial as it relates to our decision in this case, we nonetheless advise
       parties who wish to make arguments regarding statutory interpretation to take care to cite the correct
       statutory language in the first place.

       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020                                    Page 15 of 23
       claimant using ordinary diligence from obtaining information, or otherwise

       prevent inquiry and investigation. Hughes v. Glaese, 659 N.E.2d 516, 521 (Ind.

       1995) (internal quotations omitted) (quoting Keesling v. Baker & Daniels, 571

       N.E.2d 562, 565 (Ind. Ct. App. 1991)). Passive or constructive concealment, on

       the other hand, “may be merely negligent and arises when the physician does

       not disclose to the patient certain material information.” Garneau, 838 N.E.2d

       at 1142-43. “‘The physician’s failure to disclose that which he knows, or in the

       exercise of reasonable care should have known, constitutes constructive fraud.’”

       Id. at 1143 (quoting Hopster v. Burgeson, 750 N.E.2d 841, 857 (Ind. Ct. App.

       2001)).


[29]   Here, Blackford attested in a deposition that she was told by a Welborn

       employee in 2003 that the results of her test for hepatitis were negative.

       Appellant’s App. Vol. II p. 28-29. She also stated that it was not until 2014,

       when her health significantly worsened without explanation, that her new

       doctor had reason to conduct a new test that showed Blackford was positive for

       hepatitis; this 2014 test prompted Blackford to seek a copy of the Welborn

       records containing the results of the 2003 test, which actually stated that the

       2003 test showed she had been “highly reactive” and positive for hepatitis, not

       negative. Id. at 29.10




       10
         Because Blackford has not included her motion for partial summary judgment with her designated
       evidence on appeal, we are unable to confirm that she designated her deposition as evidence in support of her
       motion. But Welborn concedes as much in its brief, so we will assume that the deposition was designated to
       the trial court. Appellee’s Br. p. 20.

       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020                              Page 16 of 23
[30]   Welborn argues that this testimony is insufficient to prove fraudulent

       concealment—namely, that there is a lack of admissible evidence showing

       Blackford was provided false information with regards to the original test results

       in 2003. Welborn claims these statements by Blackford about what a Welborn

       employee told her regarding the test results are inadmissible hearsay, and

       further, that there is no evidence besides this same testimony indicating that the

       record obtained from Welborn in 2014 differed from what was shared in 2003.

       But under Indiana Evidence Rule 801(d)(2), statements by an opposing party,

       made by or through its agent or employee, are not hearsay—and that is

       precisely what Blackford offered here in her deposition. See also Reeder v. Harper,

       788 N.E.2d 1236, 1241-42 (Ind. 2003) (holding that to be admissible, the

       evidence on summary judgment need not be in a form that would be admissible

       at trial, so long as the actual substance of the evidence would be admissible).

       Welborn has designated no evidence contradicting this statement besides

       generally alleging that it is inadmissible hearsay.11


[31]   Further, Blackford testified that she continued seeking medical treatment for

       her Lichens Planus from Welborn, and later from a new provider, and never

       exhibited symptoms of hepatitis nor was given treatment for hepatitis as the

       potential underlying cause of the skin condition. In fact, per Blackford’s




       11
          With regards to the evidence of the actual test results, Blackford testified in her deposition about her
       discovery of the results in 2014, but also argues in her reply brief that the actual report with the 2003 test
       results would be admissible evidence on this matter as well. We are unable to discern whether Blackford
       designated the 2003 test result report as evidence to the trial court.

       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020                                    Page 17 of 23
       testimony, she was administered steroid medications that are contraindicated

       for a patient who has hepatitis—further suggesting that Blackford and her

       physicians, both at Welborn and later on, relied on the assumption that the test

       was negative.


[32]   Therefore, Blackford’s continued efforts to seek treatment for Lichens Planus

       and determine a cause of the condition show that she investigated her condition

       following the termination of the physician-patient relationship with Welborn in

       a reasonably diligent manner. Blackford states the issue here well: “the issue is

       not whether Welborn’s misrepresentation prevented inquiry. It did not. What it

       did block was [Blackford’s] inquiry from being effective.” Appellant’s Br. p. 24.

       To expect more of her in this scenario would effectively require that every

       patient in Blackford’s position—having received test results from a physician

       and then being treated for a condition based on those test results—continually

       question the accuracy of the information disclosed by their doctors and to

       “obtain their medical records to determine whether their physicians might have

       misled them.” Appellant’s Reply Br. p. 11; cf. Biedron v. Anon. Physician 1, 106

       N.E.3d 1079, 1092, 1096, 1099 (Ind. Ct. App. 2018) (finding that three separate

       plaintiffs, in a consolidated medical malpractice appeal, each failed to

       demonstrate fraudulent concealment because each failed to establish that the

       concealment “prevented [the plaintiff] from investigating” the medical

       condition at issue).


[33]   As such, the evidence is undisputed that Welborn failed to disclose to Blackford

       that her hepatitis test was positive and, in fact, told her precisely the opposite.

       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020          Page 18 of 23
       Based on this record, we hold as a matter of law that Welborn fraudulently

       concealed—at the least, passively; at the worst, actively—material medical

       information from Blackford.


[34]   In sum, we hold that where there is a sufficient factual demonstration of

       fraudulent concealment, such concealment equitably estops the fraudulent party

       from invoking the five-year nonclaim limit in the IBTA to time-bar a claim and

       thereby benefit from its own fraud. And though this is a case of first impression

       as it applies to the IBTA specifically, “in so holding, we break very little new

       ground.” Alldredge, 9 N.E.3d at 1264. Here, when Welborn’s motion for

       summary judgment established that Blackford’s claim was filed after the five-

       year nonclaim limit had expired, the burden shifted to Blackford to establish

       that there was, in fact, a genuine issue of material fact as to whether her claim

       was time-barred by the IBTA. Blackford then carried this burden when she

       alleged in her motion for partial summary judgment that Welborn committed

       fraudulent concealment when it allegedly gave her inaccurate test results in

       2003 and that fraudulent concealment must estop enforcement of the five-year

       limit. Welborn did not designate any evidence disputing Blackford’s version of




       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020        Page 19 of 23
       events. Therefore, the evidence regarding fraudulent concealment is

       undisputed.12


[35]   As such, we find that Blackford successfully demonstrated that (1) because an

       equitable exception for fraudulent concealment applies to the IBTA’s nonclaim

       statute, it was erroneous for the trial court to grant Welborn’s motion for

       summary judgment on this basis; and (2) the undisputed evidence in the record

       establishes as a matter of law that Welborn committed passive fraudulent

       concealment, which does, in fact, prevent application of the five-year limit

       under the IBTA, rendering denial of Blackford’s motion for partial summary

       judgment inappropriate. Therefore, we reverse the trial court’s order and

       remand with instructions to enter partial summary judgment in Blackford’s

       favor on this issue.13


                                                    Conclusion
[36]   In sum, we find as a matter of law that Welborn fraudulently concealed

       Blackford’s positive hepatitis test result. This act tolled the five-year nonclaim




       12
          Further, we note that Blackford promptly filed her proposed complaint with the IDOI after discovering the
       alleged malpractice—Blackford learned of the true 2003 test results in November 2014, and filed her
       proposed complaint a reasonable amount of time thereafter in March 2015. See, e.g., Boggs, 730 N.E.2d at
       698-99 (finding, in a case where the plaintiff alleged that passive fraudulent concealment tolled the statute of
       limitations, that even assuming the latest possible trigger date for the tolled running of the statute of
       limitations, the plaintiff “would have only a reasonable time” beyond that date to file her claim; and holding
       that waiting twenty-two and one-half months thereafter to file was unreasonable).
       13
         Blackford devotes much of her brief to a second argument that the two-year statute of limitations for
       medical malpractice suits should be tolled to the date she discovered Welborn’s fraudulent concealment. She
       acknowledges, however, that Welborn did not raise the statute of limitations as a defense. Given that it was
       not an issue before the trial court on summary judgment, we decline to address it here.

       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020                                 Page 20 of 23
       limitation such that Blackford’s complaint was timely filed under the IBTA.

       Accordingly, the trial court erred by granting Welborn’s summary judgment

       motion and denying Blackford’s partial summary judgment motion.


[37]   The trial court’s order is reversed and remanded (1) with instructions to enter

       partial summary judgment in favor of Blackford on the issue of the timeliness of

       the complaint under the IBTA; and (2) for further proceedings.


       May, J., concurs.
       Brown, J., dissents with a separate opinion.




       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020       Page 21 of 23
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Teresa Blackford,                                          Court of Appeals Case No.
                                                                  19A-CT-2054
       Appellant-Plaintiff,

               v.

       Welborn Clinic,
       Appellee-Defendant.




       Brown, Judge, dissenting.


[38]   I respectfully dissent and would affirm the trial court’s grant of Welborn’s

       motion for summary judgment. At oral argument, Blackford’s counsel

       conceded that Blackford was not alleging there was active fraud and asserted

       only constructive fraud. Oral Argument at 5:56-6:04. Blackford’s counsel also

       argued for an abolition of the distinction between active and constructive fraud.

       Id. at 5:50-5:57.



       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020                      Page 22 of 23
[39]   The Indiana Supreme Court has previously discussed a distinction between

       active and constructive concealment in the physician-patient context. In Hughes

       v. Glaese, the Court “decline[d] to abolish the distinction between constructive

       and active fraudulent concealment.” 659 N.E.2d 516, 521 (Ind. 1995). Later,

       in Boggs v. Tri-State Radiology, Inc., the Indiana Supreme Court stated:


               If the concealment is active, it is tolled until the patient discovers
               the malpractice, or in the exercise of due diligence should
               discover it. If the concealment is constructive, in this case by
               reason of an ongoing duty arising from the continuing physician-
               patient relationship, the statute of limitations is tolled until the
               termination of the physician-patient relationship, or, as in the
               active concealment case, until discovery, whichever is earlier.


       730 N.E.2d 692, 698 (Ind. 2000) (citing Hughes, 659 N.E.2d at 519), reh’g denied.

       The Court in Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257 (Ind. 2014),

       did not indicate it was overruling Boggs or Hughes.


[40]   The majority notes that the record does not reveal when, precisely, the patient-

       physician relationship between Blackford and Welborn ended, and assumes

       that, at the latest, it ended the day Welborn surrendered its authority to transact

       business on June 30, 2009. Blackford concedes that she did not file her claim

       against Welborn within the five-year period imposed by the IBTA. Based upon

       Boggs and Hughes and Blackford’s failure to file her claim until after the five-year

       period, I would affirm the trial court’s entry of summary judgment in favor of

       Welborn.




       Court of Appeals of Indiana | Opinion 19A-CT-2054 | June 26, 2020           Page 23 of 23
