                                                                                 FILED
                                                                           Jun 28 2019, 8:38 am

                                                                                 CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Jason A. Scheele                                           Richard W. Morgan
      Ashley M. Gilbert-Johnson                                  Jerome W. McKeever
      Rothberg Logan & Warsco LLP                                Pfeifer Morgan & Stesiak
      Fort Wayne, Indiana                                        South Bend, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Anonymous Doctor A,                                        June 28, 2019
      Anonymous Hospital B, and                                  Court of Appeals Case No.
      Anonymous Medical Facility C,                              18A-CT-2785
      Appellants-Defendants,                                     Appeal from the Fulton Circuit
                                                                 Court
              v.                                                 The Honorable Christopher Lee,
                                                                 Judge
      Carol Foreman,                                             Trial Court Cause No.
      Appellee-Plaintiff                                         25C01-1801-CT-41




      May, Judge.


[1]   Anonymous Doctor A, Anonymous Hospital B, and Anonymous Medical

      Facility C (hereinafter “Medical Providers”) appeal the trial court’s denial of

      their motion for preliminary determination and summary judgment. Medical

      Providers argue the trial court erred in denying summary judgment because

      Carol Foreman filed suit outside the timeframe allowed by the statute of

      Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019                             Page 1 of 10
      limitations. We reverse and remand with instructions for the trial court to enter

      summary judgment in favor of Medical Providers.



                             Facts and Procedural History
[2]   On November 25, 2015, Anonymous Doctor A surgically repaired Foreman’s

      hip fracture at Anonymous Hospital B. In the course of surgery, Anonymous

      Doctor A inserted a femoral rod into Foreman’s femur. Post-surgery, Foreman

      returned for follow-up visits, and Anonymous Doctor A ordered x-rays of

      Foreman’s femur. The x-rays did not show any fracture of the femoral rod.

      However, on January 22, 2016, Foreman felt a sudden pain in her groin area

      and was unable to walk. She went to Anonymous Hospital B for an x-ray that

      revealed the femoral rod had fractured. On January 23, 2016, surgeons in

      Indianapolis performed revision surgery on Foreman.


[3]   Foreman continued to see Doctor A after the revision surgery until May 2016.

      She initially believed the femoral rod manufacturer was at fault for the rod’s

      failure, and she sent a claim to the manufacturer seeking compensation for the

      hardware failure and revision surgery. However, on September 8, 2016, the

      manufacturer denied her claim.


[4]   On January 19, 2018, Foreman filed her proposed complaint with the Indiana

      Department of Insurance and her complaint for damages in the Fulton Circuit

      Court asserting Doctor A negligently placed the femoral rod during surgery,

      which resulted in the rod’s fracture. On May 18, 2018, Medical Providers filed


      Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019        Page 2 of 10
      a motion for preliminary determination and summary judgment arguing

      Foreman’s claims were barred by the statute of limitations. The trial court held

      a hearing on Medical Providers’ motion on August 24, 2018, and issued an

      order denying the motion on September 18, 2018. The trial court certified its

      order denying summary judgment for interlocutory appeal, and we accepted

      jurisdiction.



                                  Discussion and Decision
[5]   When reviewing the grant or denial of a motion for summary judgment, we

      apply the same standard as the trial court: whether there is a genuine issue of

      material fact and whether the moving party is entitled to judgment as a matter

      of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 973 (Ind.

      2005). We grant summary judgment “only if the evidence sanctioned by

      Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact

      and the moving party deserves judgment as a matter of law.” Id. Further, we

      construe all evidence in favor of the nonmoving party and resolve all doubts as

      to the existence of a material issue of fact against the moving party. Id. While

      the moving party must put forth evidence to support the motion, “the opposing

      party may not rest on his pleadings, but must set forth specific facts, using

      supporting materials contemplated by Trial Rule 56, which demonstrate that

      summary judgment is not appropriate.” Conrad v. Waugh, 474 N.E.2d 130, 134

      (Ind. Ct. App. 1985).




      Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019         Page 3 of 10
[6]   Consequently, the moving party bears the initial burden of demonstrating the

      absence of a genuine issue of material fact. Cole v. Gohmann, 727 N.E.2d 1111,

      1113 (Ind. Ct. App. 2000). However, if the moving party establishes that an

      action was filed outside the statute of limitations, then “the burden shifts to the

      nonmovant to establish an issue of fact material to a theory that avoids the

      defense.” Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000).


                                         Statute of Limitations
[7]   The statute of limitations governing medical malpractice actions centers on the

      date the alleged malpractice occurred. It states a “claim, whether in contract or

      tort, may not be brought against a health care provider 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.” Ind. Code § 34-18-7-1. Thus, a patient’s time to file suit

      begins on the date of the occurrence of the alleged malpractice. Palmer v.

      Gorecki, 844 N.E.2d 149, 154 (Ind. Ct. App. 2006). Foreman alleges Doctor A

      negligently inserted her femoral rod on November 25, 2015. Thus, she had

      until November 25, 2017, to file suit. As Foreman did not file suit until

      January 19, 2018, she failed to file suit within that timeframe.


[8]   Nevertheless, there are circumstances in which a patient may not have sufficient

      facts to discover that malpractice occurred within two years. Therefore, our

      Indiana Supreme Court has laid out a methodology for determining whether a

      claim is barred by the statute of limitations.


      Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019           Page 4 of 10
              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 diligent 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 following 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 possible for the claimant to present the claim in the
              time remaining after discovery and before the end of the statutory
              period.



      Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005). The date when a plaintiff

      learns of malpractice and resulting injury, or in the exercise of reasonable

      diligence should have recognized malpractice, is the “trigger date.” Anonymous

      Physician v. Kendra, 114 N.E.3d 545, 550 (Ind. Ct. App. 2018) (holding

      complaint filed in 2015 was barred by the statute of limitations when decedent

      had a number of heart procedures prior to his death and died in 2012), trans.

      denied. “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).


[9]   The occurrence date of Foreman’s injury is November 25, 2015, because that is

      the day Doctor A is alleged to have negligently implanted the femoral rod.

      Foreman reasonably should have suspected negligence on January 22, 2016,

      when her femoral rod fractured, because femoral rods are not supposed to

      fracture. In fact, Foreman suspected the manufacturer of the femoral rod was

      Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019         Page 5 of 10
       negligent and sent a letter to the manufacturer. The manufacturer wrote back

       in September 2016 denying liability, and Foreman apparently took no

       additional action until filing the instant complaint on January 19, 2018.


[10]   Foreman states in her affidavit that she “never had reason to believe that [she]

       had a claim for medical malpractice until [her] attorneys filed a medical

       malpractice complaint on January 19, 2018.” (App. Vol. II at 49.) This

       conclusory statement does not create a genuine issue of material fact. Someone

       must suspect malpractice in order to draft a complaint alleging malpractice.

       Foreman fails to put forth any evidence about what prompted her to file suit. If

       the failure of the femoral rod prompted Foreman to suspect malpractice, then

       she discovered the potential malpractice twenty-two months before the

       limitation period expired. If the letter from the manufacturer prompted

       Foreman to suspect malpractice, then she discovered it fourteen months before

       the limitations period expired. Either way, Foreman learned of the suit

       sufficiently in advance of the limitations expiration date to file suit within two

       years of the occurrence date. We have held that discovering potential

       malpractice ten or eleven months before expiration of the statute of limitations

       and failing to file suit is unreasonable. See Boggs, 730 N.E.2d at 697-98 (holding

       plaintiff had reasonable time to file suit prior to expiration of statute of

       limitations when plaintiff had eleven months before the limitation period

       ended); Jeffrey v. Methodist Hosp., 956 N.E.2d 151, 160 (Ind. Ct. App. 2011)

       (holding plaintiffs’ failure to file their action within ten months of learning of

       potential malpractice was not reasonably diligent); Williams v. Adelsperger, 918


       Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019              Page 6 of 10
       N.E.2d 440, 448 (Ind. Ct. App. 2009) (holding plaintiff’s failure to file action

       within eleven months of learning of potential malpractice was not reasonably

       diligent). Therefore, we conclude Foreman knew about or reasonably should

       have known about the alleged malpractice sufficiently in advance of expiration

       of the statute of limitations for her to file suit, but she failed to do so.


                                    Continuing Wrong Doctrine
[11]   Foreman’s claim cannot be saved by the continuing wrong doctrine. The

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

       to produce an injury.” Gradus-Pizlo v. Acton, 964 N.E.2d 865, 871 (Ind. Ct.

       App. 2012). If the doctrine applies, the statutory limitations period does not

       begin to run until the end of the course of conduct resulting in injury. Id. “In

       order to apply the doctrine, the plaintiff must demonstrate that the alleged

       injury-producing conduct was of a continuous nature.” Id.


[12]   Foreman asserts that her claim is timely because she continued to see Doctor A

       until May 2016. However, the alleged wrong, misplacement of a femoral rod

       during surgery, is an isolated event, not conduct of a continuing nature. Doctor

       A monitored Foreman before and after the revision surgery, but Foreman does

       not put forth any facts to show Doctor A’s conduct after inserting the femoral

       rod amounts to malpractice. See Anonymous Physician v. Rogers, 20 N.E.3d 192,

       200 (Ind. Ct. App. 2014) (holding continuing wrong doctrine did not apply

       when malpractice complaint alleged doctor used chemical to which patient was

       allergic and complaint was filed more than two years after doctor stopped using


       Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019              Page 7 of 10
       the chemical, even though patient continued to see doctor after he stopped

       using the chemical), trans. denied.


                                       Fraudulent Concealment
[13]   Nor has Foreman demonstrated Medical Providers fraudulently concealed facts

       preventing her from discovering the potential malpractice. Fraudulent

       concealment is an equitable doctrine that tolls the statute of limitations when

       the defendant “has 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), trans. denied. Fraudulent concealment may be active

       or passive. Id. Passive fraudulent concealment “arises when the physician does

       not disclose to the patient certain material information.” Id. at 1142-43.

       Passive concealment tolls the beginning of the statute of limitations period until

       “the time the patient-physician relationship ends or, as in the active

       concealment case, until discovery, whichever is earlier.” GYN-OB Consultants,

       L.L.C. v. Schopp, 780 N.E.2d 1206, 1210 (Ind. Ct. App. 2003) (internal citation

       omitted), trans. denied. “Active concealment involves affirmative acts of

       concealment intended to mislead or hinder the plaintiff from obtaining

       information concerning the malpractice. When active concealment is involved,

       the statute does not expire until a reasonable time after the patient discovers the

       malpractice or with reasonable diligence could have discovered the

       malpractice.” Id. (internal citation omitted). Therefore, “the critical event for

       purposes of determining whether an action was timely filed is the plaintiff’s



       Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019         Page 8 of 10
       discovery of facts that should have alerted them that they have a cause of

       action.” Garneau, 838 N.E.2d at 1143.


[14]   Foreman asserts Doctor A fraudulently concealed facts that would have led her

       to realize she had a potential claim when he told her he had “no idea” why the

       femoral rod failed. (Appellee Br. 22.) However, she did not designate evidence

       to demonstrate Doctor A actively concealed the reason for the femoral rod

       failure. Nor did she designate evidence to demonstrate Doctor A’s statement

       that he had “no idea” why the rod failed was inaccurate or intended to mislead.

       Nor is there evidence Doctor A failed to disclose material information to

       Foreman. She knew who performed her surgery. The doctors accurately

       informed her of the results of post-operative x-rays, and Foreman knew when

       the rod fractured. Thus, Foreman has not demonstrated that the doctrine of

       fraudulent concealment saves her claim. See Johnson v. Sullivan, 952 N.E.2d

       787, 792 (Ind. Ct. App. 2011) (holding fraudulent concealment doctrine did not

       apply as to provide patient’s estate a reasonable time beyond expiration of the

       two-year limitations period to file medical malpractice complaint), trans. denied.



                                                 Conclusion
[15]   Foreman had ample time to file suit within two years of the date of the alleged

       malpractice, but she failed to do so, and her claim cannot be saved by the

       continuing wrong doctrine or fraudulent concealment. Accordingly, we must

       reverse the trial court and remand with instructions for the trial court to enter

       summary judgment on behalf of Medical Providers.

       Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019         Page 9 of 10
Reversed and remanded.


Mathias, J., and Brown, J., concur.




Court of Appeals of Indiana | Opinion 18A-CT-2785 | June 28, 2019   Page 10 of 10
