MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Oct 11 2016, 8:23 am
regarded as precedent or cited before any                               CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court


estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
B. Michael Macer                                         Patrick A. Shoulders
Lauren E. Berger                                         Evansville, Indiana
Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Patricia A. Smith,                                       October 11, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         82A01-1512-CT-2364
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
Kelly J. Fehrenbacher, M.D. and                          The Honorable David D. Kiely,
David J. Weaver, M.D.,                                   Judge
Appellees-Defendants                                     The Honorable Michael J. Cox,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1501-CT-480



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016     Page 1 of 14
[1]   Patricia A. Smith filed a medical malpractice action against Kelly J.

      Fehrenbacher, M.D. (Dr. Fehrenbacher) and David J. Weaver, M.D. (Dr.

      Weaver). Dr. Fehrenbacher sought summary judgment on the ground that

      Smith’s complaint was barred by the applicable statute of limitations. The trial

      court granted the motion and, finding no just reason for delay, entered final

      judgment in favor of Dr. Fehrenbacher. On appeal, Smith contends that

      summary judgment was improper because genuine issues of material fact exist

      regarding whether the claim against Dr. Fehrenbacher was timely filed.1


[2]   We affirm.


                                            Facts & Procedural History


[3]   In December 2009, while under the care of her primary physician, Dr.

      Fehrenbacher, Smith began complaining of lower extremity pain mostly when

      walking. Smith returned to Dr. Fehrenbacher in January and March 2010 with

      continuing complaints of leg pain. As a result, Dr. Fehrenbacher had Smith

      participate in a segmental pressure study on March 18, 2010. The study

      showed mild bilateral end flow disease as a possible cause of Smith’s pain. The

      testing physician recommended further evaluation and indicated that “patient

      might benefit from MRA with special attention to the iliac arteries or with

      arteriogram.” Appendix at 111.




      1
          Dr. Weaver did not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016   Page 2 of 14
[4]   Rather than ordering an MRA to determine whether Smith was suffering from

      vascular disease, Dr. Fehrenbacher sent Smith for an MRI and then, on March

      24, 2010, referred her to Dr. Weaver, a neurosurgeon, for evaluation of lumbar

      problems as a possible cause of her leg pain. By the time Smith went to see Dr.

      Weaver, she could not walk any significant distance because of pain. In his

      treatment of Smith, Dr. Weaver never considered potential vascular causes of

      her problems and eventually suggested back fusion surgery. Smith had this

      surgery on September 1, 2010.


[5]   The surgery did not resolve Smith’s pain, and she returned to Dr. Fehrenbacher

      for treatment. After Smith continued to report leg pain at several appointments,

      Dr. Fehrenbacher ordered another segmental pressure study on August 8, 2011.

      This test, performed on August 11, 2011, revealed findings “consistent with

      severe inflow disease suggesting either severe aortobiiliac disease or bilateral

      iliac disease.” Id. at 128. The testing physician suggested further evaluation,

      including an arteriogram and referral for vascular surgery.


[6]   Dr. Fehrenbacher then referred Smith to Wajeehuddin Mohammed (Dr.

      Mohammed), a vascular surgeon. Dr. Mohammed performed the needed

      procedure – aortoiliac stenting – on September 20, 2011. This procedure

      resolved Smith’s pain, allowing her to regularly walk three to four miles

      without pain.


[7]   On August 17, 2012, Smith filed her proposed complaint for damages against

      Dr. Fehrenbacher and Dr. Weaver with the Indiana Department of Insurance.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016   Page 3 of 14
In her submission of evidence to the Medical Review Panel (the Panel), Smith

began with an introduction summarizing her claims, which provided in part:


        Smith alleges that the Defendants failed to meet the standard of
        care in their respective treatments of Smith due to each
        Defendant’s failure to accurately diagnose her vascular problems,
        their failure to timely treat her vascular problems, their failure to
        rule out vascular causes before having back fusion, and
        performing fusion surgery rather than vascular procedure such as
        aortoiliac stenting, which was much [sic] simpler and less
        invasive procedure that ultimately resolved her symptoms.
        Instead Dr. Weaver, with approval from Dr. Fehrenbacher,
        performed an unnecessary back fusion surgery without ever
        considering vascular disease as a source of her symptoms.


                                                ****


        Had Dr. Fehrenbacher followed up on the results of the
        segmental pressure studies and the clinical signs of vascular
        disease by timely ordering a MRA, as had originally been
        recommended, or had Dr. Weaver considered possible vascular
        causes such as the peripheral vascular disease that Smith in fact
        had prior to assuming a neurological cause despite numerous
        contra-indications, then Smith would not have had to have endured
        the painful, costly and unnecessary lumbar fusion.


Id. at 35, 37 (emphasis supplied). Within the discussion of care section of her

submission, Smith focused entirely on the substandard care provided by the

doctors leading up to the unnecessary back surgery. She concluded her

submission as follows:

        As the aforementioned facts demonstrate, Defendants breached
        their duty of care to the Plaintiff, Patricia Smith, to provide

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016   Page 4 of 14
              appropriate medical care. Said treatment rendered by
              Defendants was negligent and below the appropriate standard of
              care. Specifically, Dr. Fehrenbacher failed to order further MRA
              testing or an ateriogram [sic] despite suggestion of bilateral
              inflow disease in March 2010. She failed to properly inform
              Smith of the test results, her need for MRA testing, or the fact
              that vascular issues were a potential cause of her problems.
              Furthermore she was complicit in Dr. Weaver performing an
              unnecessary fusion that did not alleviate Smith’s pain. Dr.
              Weaver ignored any other possible cause for Smith’s problems
              and proceeded with a dangerous complicated surgery rather than
              ruling out vascular problems. In fact he did not even consider
              any other possible cause despite him having notes from Dr.
              Fehrenbacher revealing that vascular problems existed.


              Considering the fact that the vascular and neurologic
              claudication can be difficult to differentiate, it was only prudent
              to avoid the much more complicated, painful, dangerous fusion
              surgery if there was a chance that a much simpler and less
              invasive procedure could resolve some or all of Smith’s pain.
              The failure of Dr. Weaver’s lumbar surgery and the later
              recovery of Smith from her aortoiliac stenting is proof that the
              lumbar surgery was not necessary.


              For these reasons, this Panel should find both Defendants’ care
              fell below the acceptable standards of care.


      Id. at 49.


[8]   On October 31, 2014, the Panel issued a unanimous opinion that Dr.

      Fehrenbacher (as well as Dr. Weaver) failed to comply with the appropriate

      standard of care as charged in the complaint. Thereafter, Smith filed her

      complaint with the trial court on January 27, 2015.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016   Page 5 of 14
[9]    Dr. Fehrenbacher filed a motion for summary judgment on May 27, 2015, in

       which she argued that Smith’s claims against her were time-barred. Among

       other things, Dr. Fehrenbacher designated as evidence the affidavit of Gregory

       C. Kiray, M.D. (Dr. Kiray), one of the Panel members. Dr. Kiray averred that

       he and the other Panel members concluded, based on the medical records, party

       submissions, and affidavits, that “Dr. Fehrenbacher failed to comply with the

       appropriate standard of care when, on or before March 24, 2010, she failed to

       order an MRA and/or further vascular consultation before or at the same time

       as making a neurosurgery referral.” Id. at 31.


[10]   In August 2015, the trial court granted Dr. Fehrenbacher’s motion for summary

       judgment and thereafter made the order a final judgment. The trial court later

       denied a motion to correct error filed by Smith. Smith now appeals.


                                           Discussion & Decision


[11]   When reviewing a summary judgment ruling, we apply the same standard as

       the trial court. David v. Kleckner, 9 N.E.3d 147, 149 (Ind. 2014). “Summary

       judgment may be granted, or affirmed on appeal, 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.’” Id.

       (quoting Ind. Trial Rule 56(C)). The facts and reasonable inferences established

       by the designated evidence are to be construed in favor of the non-moving

       party. Id.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016   Page 6 of 14
[12]   Further, when a medical-malpractice defendant asserts the statute of limitations

       as an affirmative defense, that defendant bears the burden of establishing that

       the action was commenced beyond the statutory period. Id. If established, the

       burden shifts to the plaintiff to demonstrate an issue of fact material to a theory

       that avoids the defense. Id.


[13]   The party appealing a grant of summary judgment has the burden of persuading

       this court that the ruling was erroneous. See Perkins v. Stesiak, 968 N.E.2d 319,

       321 (Ind. Ct. App. 2012), trans. denied. The appellant also bears the burden of

       presenting a complete record with respect to the issues raised on appeal. Finke

       v. N. Ind. Pub. Serv. Co., 862 N.E.2d 266, 272-73 (Ind. Ct. App. 2006) (“We

       cannot review a claim that a trial court erred in granting a motion for summary

       judgment when the appellant does not include in the record all the evidence

       designated to the trial court and before it when it made its decision.”), trans.

       denied; see also Lenhardt Tool & Die Co., Inc. v. Lumpe, 703 N.E.2d 1079, 1084

       (Ind. Ct. App. 1998), trans. denied.


[14]   Our review has been hampered by Smith’s failure to provide us with Dr.

       Fehrenbacher’s motion for summary judgment, the memoranda filed in support

       of and in opposition to the motion, and Smith’s own designation of evidence.

       Thus, we would be well within our discretion to conclude that Smith, as the

       appealing party, failed to present us with a record sufficient to conclude that the

       trial court erred in granting summary judgment to Dr. Fehrenbacher. See Finke,

       862 N.E.2d at 273. Still, we prefer to decide cases on their merits whenever

       possible. Omni Ins. Group v. Poage, 966 N.E.2d 750, 753 (Ind. Ct. App. 2012),

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016   Page 7 of 14
       trans. denied. We therefore address Smith’s arguments based on the record

       before us, which does include Dr. Fehrenbacher’s designated evidence.


[15]   On appeal, Smith contends that summary judgment was improperly granted on

       the basis that her proposed complaint for damages was not timely filed within

       the Medical Malpractice Act’s statute of limitations. Further, she contends that

       genuine issues of fact exist regarding the applicability of the doctrines of

       continuing wrong and fraudulent concealment.


[16]   The Medical Malpractice Act’s statute of limitations is found in Ind. Code § 34-

       18-7-1(b) and provides in relevant part:

               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….


       The statute is an occurrence-based statute of limitations and, thus, the time for

       filing begins to run on the date the alleged negligent act occurred rather than the

       date it was discovered. Brinkman v. Bueter, 879 N.E.2d 549, 553 (Ind. 2008). A

       substantial body of case law has been developed to address situations in which a

       plaintiff was unable to discover the malpractice and his or her resulting injury

       within the two year period. See, e.g., David, 9 N.E.3d at 150-153. Where the

       discovery date is within the two year period following the occurrence, however,

       the statutory limitations period applies and “the action must be initiated before

       the period expires, unless it is not reasonably possible for the claimant to


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016   Page 8 of 14
       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).


[17]   The parties agree that Dr. Fehrenbacher’s misdiagnosis occurred on or about

       March 24, 2010, and was discovered no later than September 2011 by Smith.

       Because the discovery date was within two years of the misdiagnosis, Smith

       had until March 24, 2012, at least six months, to file her proposed complaint.2

       She filed several months after that date, on August 17, 2012.


[18]   Smith asserts a number of arguments in an attempt to save her malpractice

       claim against Dr. Fehrenbacher. See David, 9 N.E.3d at 153 (once doctor

       established that the action was commenced more than two years after the date

       of the alleged malpractice, the burden shifted to plaintiff to show an issue of fact

       material to a theory that avoids the defense). Smith initially contends that the

       negligence continued through August 2011 because Dr. Fehrenbacher

       continued to treat her for leg pain after her back surgery and did not render a

       proper diagnosis until August 2011. In other words, Smith argues that issues of

       material fact exist with regard to whether the doctrine of continuing wrong

       tolled the commencement of the statute of limitations.


[19]   “The doctrine of continuing wrong applies where an entire course of conduct

       combines to produce an injury.” Garneau v. Bush, 838 N.E.2d 1134, 1143 (Ind.

       Ct. App. 2005), trans. denied. When this doctrine is applicable, the two-year



       2
           Smith does not dispute that it was reasonably possible to present her claim in the time remaining.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016             Page 9 of 14
       statutory limitations period begins to run at the end of the continuing wrongful

       act. Id. “In order to apply the doctrine, the plaintiff must demonstrate that the

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


[20]   In both her submission to the Panel and her complaint, Smith has consistently

       maintained as the basis of her action that the misdiagnosis of two physicians

       resulted in her having an unnecessary back surgery. Smith’s submission

       focused entirely on the alleged malpractice leading up to the surgery, and she

       made no argument to the Panel that Dr. Fehrenbacher’s care after the surgery

       constituted a breach of the standard of care and resulted in injury. Indeed, Dr.

       Fehrenbacher designated the affidavit of Dr. Kiray, in which Dr. Kiray averred

       that the Panel members concluded “Dr. Fehrenbacher failed to comply with the

       appropriate standard of care when, on or before March 24, 2010, she failed to

       order an MRA and/or further vascular consultation before or at the same time

       as making a neurosurgery referral.” Appendix at 31.


[21]   Smith attempts to liken her case to Garneau, 838 N.E.2d 1134. In that case, the

       doctor performed a hip replacement on Garneau using an obsolete prosthesis.

       Following the surgery, Garneau experienced complications and ongoing pain

       for eighteen months. During this time, the doctor continued to prescribe pain

       medication and physical therapy. He eventually referred Garneau to an

       orthopedic surgeon, who replaced the prosthesis.


[22]   In response to the doctor’s motion for summary judgment, Garneau asserted

       that the doctrine of continuing wrong applied. Specifically, she argued that her


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016   Page 10 of 14
       ongoing hip problems were the combined result of the doctor’s use of an

       obsolete prosthesis and his improper treatment of her hip pain following

       surgery. To this end, Garneau designated the affidavit of a board-certified

       orthopedic surgeon and Associate Professor in the Department of Orthopedic

       Surgery at Indiana University Hospital. The expert averred that the doctor’s

       use of an obsolete prosthesis and his failure to recommend revision of the

       prosthesis after Garneau continued to suffer hip pain six months post-surgery

       were breaches of the appropriate standard of care and resulted in her pain and

       inability to regain mobility and maximize her ability to ambulate. Based upon

       the affidavit, we concluded that Garneau had established a genuine issue of fact

       as to the applicability of the doctrine of continuing wrong. Id. at 1145.


[23]   The record before us does not contain an expert affidavit addressing whether

       Dr. Fehrenbacher’s post-surgery treatment of Smith constituted a breach of the

       standard of care that resulted in injury to Smith. Further, the Panel did not

       make a finding in this regard because, with respect to Dr. Fehrenbacher, Smith

       framed her allegations of negligence to encompass only acts leading up to the

       back surgery.


[24]   The alleged injury in this case – an unnecessary surgery – was caused, in part,

       by Dr. Fehrenbacher’s misdiagnosis and referral to Dr. Weaver. On the record

       before us, we cannot say that a question of fact exists as to whether Dr.

       Fehrenbacher’s treatment of Smith during the eleven months after the surgery

       amounted to injury-producing conduct of a continuous nature to which the

       doctrine of continuing wrong would apply.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016   Page 11 of 14
[25]   In a related argument, Smith contends that even if this doctrine does not apply

       to toll the statute of limitations, any negligence that occurred within the two

       years prior to August 17, 2012 – the date she filed her proposed complaint –

       should not be barred. Though not well developed, we take this argument as an

       invitation to consider Dr. Fehrenbacher’s post-surgery treatment of Smith’s leg

       pain as a separate act of negligence. Again, the difficulty with this argument is

       that it was not asserted in Smith’s submission to the Panel or in her complaint,

       and she has not designated any evidence to establish a genuine issue of fact in

       this regard. Cf. Garneau, 838 N.E.2d at 1145-46 (expert affidavit established a

       genuine issue of material fact regarding separate act of negligence during post-

       surgery treatment).


[26]   Finally, Smith contends that her medical malpractice claim was timely filed

       because the doctrine of fraudulent concealment tolled the statute of limitations.

       Smith directs us to evidence that Dr. Fehrenbacher did not provide her with the

       results of her original segmental pressure study from March 2010 until Dr.

       Fehrenbacher did further follow-up in August 2011.


[27]   Under the equitable doctrine of fraudulent concealment, “a defendant who has

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

       duty or deception, is estopped from raising a statute of limitations defense.” Id.

       at 1142. In the medical malpractice context, the doctrine may operate to toll

       the statute of limitations until the termination of the physician-patient

       relationship or until discovery of the alleged malpractice, whichever is earlier.

       Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 698 (Ind. 2000). When the

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016   Page 12 of 14
       doctrine is applicable, “the patient must bring his or her claim within a

       reasonable period of time after the statute of limitations begins to run.” Id.


[28]   Constructive concealment, as opposed to active, 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 she knows, or in the exercise of reasonable care should have

       known, constitutes constructive fraud. Id. at 1143.


[29]   Smith argues that the malpractice was not discovered until August 2011 and

       that, under the doctrine of fraudulent concealment, she had a full two years

       after that date to file her proposed complaint. On the contrary, assuming the

       doctrine applies, Smith had only “a reasonable period of time” after discovery

       in which to bring her claim. Boggs, 730 N.E.2d at 698; see also Cacdac v. Hiland,

       561 N.E.2d 758, 759 (Ind. 1990) (“equity will bar the [statute of limitations]

       defense only if the claimant has instituted a cause of action within a reasonable

       time after discovering the alleged malpractice”); Spoljaric v. Pangan, 466 N.E.2d

       37, 44 (Ind. Ct. App. 1984) (“equity will prevent the statute from barring a

       plaintiff’s claim during the period the plaintiff is ‘equitably disabled’” but it will

       not “provide a plaintiff with an entirely new period”), trans. denied. Smith

       waited over a year to file her claim, and she makes no argument on appeal that

       waiting this amount of time was reasonable.


[30]   In conclusion, the record establishes that Smith discovered the alleged

       malpractice of Dr. Fehrenbacher within the applicable two-year statute of


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016   Page 13 of 14
       limitations. Smith has not established a question of fact regarding whether the

       doctrines of continuing wrong and fraudulent concealment apply to save her

       complaint from being time-barred. Accordingly, the trial court did not err in

       granting summary judgment in favor of Dr. Fehrenbacher.


[31]   Judgment affirmed.


[32]   Bailey, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016   Page 14 of 14
