                                                                     FILED
                                                                Jun 29 2016, 8:21 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Christopher L. Riegler                                     Martin H. Kinney Jr.
Kimberly E. Schroder                                       Dolt, Thompson, Shepherd &
Hall, Render, Killian,                                     Kinney, PSC
Heath & Lyman, P.C.                                        Louisville, Kentucky
Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Anonymous M.D. and                                         June 29, 2016
Anonymous Hospital,                                        Court of Appeals Case No.
Appellants-Petitioners,                                    39A01-1509-CT-1498
                                                           Appeal from the Jefferson Circuit
        v.                                                 Court
                                                           The Honorable Darrell M. Auxier,
Kenneth Lockridge, on behalf of                            Judge
Lily Lockridge, Rose Lockridge,                            Trial Court Cause No.
and Kenneth Lockridge, Jr.,                                39C01-1412-CT-982
Minors,
Appellees-Respondents,

  and

Commissioner of Indiana
Department of Insurance,
Non-Moving Respondents




Court of Appeals of Indiana | Opinion 39A01-1509-CT-1498 | June 29, 2016                 Page 1 of 13
      Baker, Judge.


[1]   Traci Leach died from lung cancer after a radiologist failed to diagnose a tumor

      on a CT scan. After Leach’s death, multiple medical malpractice claims were

      filed, including a claim filed by three of her young children. The trial court

      dismissed all of the claims except for the children’s because the claims were

      untimely filed. But it found that because the children were under the age of six

      at the time of the alleged negligence and under the age of eight at the time of the

      filing of the complaint, their claims were not time-barred. Given the plain

      language of the statutes at issue, we find that the trial court did not err by

      finding that the children’s claims were not time-barred.


[2]   Anonymous M.D. (the Doctor) and Anonymous Hospital (the Hospital)

      (collectively, the Appellants) bring this interlocutory appeal of the trial court’s

      order partially denying their summary judgment motion. The Appellants argue

      that the two-year statute of limitations applies to the claims of Traci’s children

      and that the trial court erred by denying summary judgment on those claims.

      We affirm and remand for further proceedings.


                                                      Facts     1




[3]   On July 6, 2011, Traci Leach underwent a CT scan at the Hospital. The CT

      scan was later interpreted by the Doctor, who failed to identify a lung tumor




      1
       We held oral argument in Indianapolis on June 14, 2016. We thank counsel for both parties for their
      outstanding written and oral presentations.

      Court of Appeals of Indiana | Opinion 39A01-1509-CT-1498 | June 29, 2016                       Page 2 of 13
      that was allegedly present and diagnosable on the CT scan. Traci learned on

      August 30, 2012, that she had lung cancer, and she died on July 17, 2014.


[4]   Traci and Kenneth Lockridge had three children together: Lily, Rose, and

      Kenneth Jr. (the Children). Leach also had two other children, Dustin and

      Ashley Leach. On August 27, 2014, the Children, Dustin and Ashley Leach,

      and Traci’s Estate filed a complaint with the Indiana Department of Insurance,

      alleging that the Appellants had acted negligently and that the negligence

      resulted in Traci’s death. Kenneth alleges that in July 2011, the Children were

      under the age of six and that at the time the complaint was filed, they were

      under the age of eight.2


[5]   On December 12, 2014, the Appellants filed a motion for summary judgment in

      the trial court, arguing that they were entitled to judgment as a matter of law

      because the complaint was not timely filed. On July 20, 2015, the trial court

      issued an order granting summary judgment with respect to the claims of the

      Estate, Dustin, and Ashley. It denied summary judgment with respect to the

      Children. In pertinent part, the trial court found as follows:

                                                Findings of Fact

                                                         ***




      2
        There is no evidence in the record establishing the ages of the Children. While there was evidence
      regarding their ages contained within the Children’s response to the Appellants’ summary judgment motion,
      the trial court struck that response and evidence attached thereto from the record because it was untimely
      filed. We will address the issue of the Children’s ages below. It is undisputed that Dustin and Ashley were
      over the age of six in July 2011 and over the age of eight when the complaint was filed.

      Court of Appeals of Indiana | Opinion 39A01-1509-CT-1498 | June 29, 2016                        Page 3 of 13
        4.       Traci Leach became aware of the alleged malpractice and
                 resulting injury over ten months before the two year
                 limitation period prescribed by the Medical Malpractice
                 Act (“MMA”) expired.

                                                  ***

        9.       Three of Leach’s children . . . were less than six years of
                 age in July of 2011. Her remaining children, Dustin Leach
                 and Ashley Leach, were more than six years of age in July
                 of 2011. [fn 1]

                 [fn1] The Court has . . . stricken the . . . sole source
                       of information regarding the ages of the
                       children. The Court assumes that there is no
                       material issue of fact as to the ages of the
                       children and that their ages are as found by
                       the Court. . . . Without knowledge of the
                       children’s ages, the Court would be
                       compelled to deny Petitioner’s motion as to
                       all the children. . . .

                                                  ***

                                       Conclusions of Law

                                                  ***

        4.       . . . Leach had ample time to file her action between the
                 date of her discovery (August 30, 2012) and the date of the
                 running of the occurrence based statute of limitations (July
                 8, 2013). Her failure to do so barrs [sic] her Estate from
                 pursuing its claim.

        5.       . . . The children’s claims are derivative claims. . . .
                 Persons having derivative claims are patients within the
                 meaning of Indiana Code 34-18-2-22. . . .

                                                  ***

Court of Appeals of Indiana | Opinion 39A01-1509-CT-1498 | June 29, 2016    Page 4 of 13
              7.       The fact that their mother’s underlying claim is time
                       barred does not prevent the Leach children from pursuing
                       a derivative claim. A derivative claim may be maintained
                       even if the underlying claim would be time barred.

                                                        ***

              12.      Indiana Code 34-18-7-1, the MMA statute of limitations,
                       provides that a medical malpractice claim is barred unless
                       it is filed within two years after the date of the alleged
                       malpractice, except that a minor less than six years of age
                       has until the minor’s eighth birthday to file.

              13.      The claims of Dustin Leach and Ashley Leach are time-
                       barred as they were not filed within 2 years of the date of
                       occurrence . . . .

              14.      [The Children] were less than six years of age on the date
                       of the occurrence of the alleged malpractice. Pursuant to
                       Indiana Code 34-18-7-1 they had until their eighth
                       birthdays to timely file their claims. Their claims were,
                       therefore, timely filed and are not barred by the MMA
                       statute of limitations.


      Appellants’ App. p. 58-64 (internal citations omitted). The Appellants now

      bring this interlocutory appeal of the denial of their summary judgment motion

      with respect to the Children.


                                    Discussion and Decision
                                      I. Standard of Review
[6]   Our standard of review on summary judgment is well settled:

              We review summary judgment de novo, applying the same
              standard as the trial court: “Drawing all reasonable inferences in

      Court of Appeals of Indiana | Opinion 39A01-1509-CT-1498 | June 29, 2016       Page 5 of 13
              favor of . . . the non-moving parties, summary judgment is
              appropriate ‘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 judgment as a matter of law.’” Williams v.
              Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
              fact is ‘material’ if its resolution would affect the outcome of the
              case, and an issue is ‘genuine’ if a trier of fact is required to
              resolve the parties’ differing accounts of the truth, or if the
              undisputed material facts support conflicting reasonable
              inferences.” Id. (internal citations omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). To the extent that the

      resolution of this case turns on an issue of statutory interpretation, we apply a

      de novo standard of review. Meyer v. Beta Tau House Corp., 31 N.E.3d 501, 513

      (Ind. Ct. App. 2015).


                                    II. Statute of Limitations
[7]   The Appellants contend that the Children’s negligence claim is barred by the

      relevant statute of limitations and that, as a result, summary judgment should

      be granted in favor of the Appellants. A medical malpractice defendant who

      asserts the statute of limitations as a defense bears the burden of establishing

      that the action was commenced beyond the statutory period. Boggs v. Tri-State

      Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000). Once the defendant meets that

      burden, the burden shifts to the plaintiff to establish “an issue of fact material to

      a theory that avoids the defense.” Id. Failure to file a proposed medical

      malpractice complaint within the statute of limitations is generally fatal to that

      claim. McGill v. Ling, 801 N.E.2d 678, 682 (Ind. Ct. App. 2004).


      Court of Appeals of Indiana | Opinion 39A01-1509-CT-1498 | June 29, 2016    Page 6 of 13
[8]   Indiana Code section 34-18-7-1(b) provides as follows:


              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, except that a minor less than six (6)
              years of age has until the minor’s eighth birthday to file.


      The parties disagree about a number of things with respect to this statute of

      limitations: (1) the date on which it began to run; (2) whether an exception

      applies; and (3) whether the Children’s derivative claim can survive after the

      underlying claim was dismissed as untimely.


[9]   At the outset, we note that the parties also disagree about whether the

      Children’s ages have been established such that the tolling provision even

      arguably applies. It is true that the Children’s summary judgment response,

      which contained the only evidence establishing their ages, was struck as

      untimely. The trial court noted in its order that there was no material dispute

      regarding the Children’s ages but explicitly stated that if the ages in the order

      were incorrect, a motion to correct error to that effect could be filed.

      Appellant’s App. p. 60 n.1. The Appellants filed a motion to correct error and

      raised the Children’s ages as an issue therein, but they merely argued that there

      was insufficient evidence supporting the ages—not that the ages were incorrect.

      It is apparent that there is no genuine dispute regarding the Children’s ages, and

      we decline to resolve this case on such a narrow, technical basis. We turn,

      therefore, to the parties’ substantive arguments.

      Court of Appeals of Indiana | Opinion 39A01-1509-CT-1498 | June 29, 2016    Page 7 of 13
            A. When Did the Limitations Period Begin to Run?
[10]   Here, the parties debate about whether the two-year statute of limitations began

       to run on the date of the alleged negligence or on the date of Traci’s death. Our

       Supreme Court has already answered this question. If the patient’s death was

       caused by the malpractice, then the “claim must be filed within two years of the

       occurrence of the malpractice.” Ellenwine v. Fairley, 846 N.E.2d 657, 665 (Ind.

       2006). The Ellenwine Court reached this result by examining the purposes of the

       MMA:


               One of the principal legislative purposes behind the MMA in
               general and the two-year occurrence-based statute of limitations
               in particular was to foster prompt litigation of medical
               malpractice claims. Because a patient who has been the victim of
               medical negligence could well live many more than two years
               beyond the occurrence of the malpractice only to ultimately die
               as a result of it, applying the two-years-after-death limitations
               period of the wrongful death statute where a patient dies from the
               malpractice seems to us totally inconsistent with this legislative
               goal.


       Id. at 664. In the case at hand, therefore, the occurrence-based two-year statute

       of limitations contained within the MMA applies notwithstanding the fact that

       Traci died as a result of the alleged negligence. In other words, the two-year

       limitations period began to run on July 6, 2011, the date on which the alleged

       negligence occurred, and had lapsed by the time the parties filed their complaint

       on August 27, 2014, unless an exception applies.




       Court of Appeals of Indiana | Opinion 39A01-1509-CT-1498 | June 29, 2016   Page 8 of 13
                                B. Does an Exception Apply?
[11]   There may be instances in which discovery of alleged malpractice after the

       alleged malpractice occurs extends the statute of limitations. Our Supreme

       Court has provided a framework in which to evaluate this situation. First, a

       court must determine the date on which the alleged malpractice occurred, and

       second, it must determine the “trigger date,” which occurs when the claimant

       has sufficient information that a reasonably diligent person would have

       discovered the alleged malpractice. Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind.

       2005).


[12]   If the trigger date occurs more than two years beyond the date of the

       malpractice, then the claimant has two years after discovery to initiate the

       claim. Id. at 1169. But if the trigger date is within the two years following the

       malpractice, the action must be initiated within the two-year limitation “unless

       it is not reasonably possible for the claimant to present a claim in the time

       remaining after discovery and before the end of the statutory period.” Id. at

       1172.


[13]   If the claimant has insufficient time to file, the claim must be initiated “within a

       reasonable time” following discovery. Id. So long as the time remaining is not

       so short “that it is impractical for a plaintiff to file a claim at all,” the two-year

       statute of limitations applies. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692,

       697-98 (Ind. 2000). Courts of this State have found that time periods ranging

       from four to eleven months were sufficient for a medical malpractice claim to


       Court of Appeals of Indiana | Opinion 39A01-1509-CT-1498 | June 29, 2016      Page 9 of 13
       be filed. See Herron v. Anigbo, 897 N.E.2d 444, 453 (Ind. 2008) (four months);

       Overton v. Grillo, 896 N.E.2d 499, 504 (Ind. 2008) (nine months); Boggs, 730

       N.E.2d at 699 (eleven months).


[14]   In this case, the alleged negligence occurred on July 6, 2011, meaning that the

       two-year statute of limitations expired on July 6, 2013. The Appellants argue

       that the trigger date in this case is August 30, 2012, when Traci learned that she

       had lung cancer. We agree. If that is the trigger date, then the two-year statute

       of limitations applies and Traci had ten remaining months in which to file her

       claim. We also agree that ten months is a sufficient time in which to file and

       that, consequently, no discovery-based exception to the two-year period should

       apply. That said, the Children may still be entitled to pursue their claim based

       on the tolling provision in the statute.


                                    C. The Tolling Provision
[15]   As noted above, the relevant MMA statute provides that “[a] claim” sounding

       in medical malpractice must be filed within two years of the alleged negligence,

       “except that a minor less than six (6) years of age has until the minor’s eighth

       birthday to file.” I.C. § 34-18-7-1(b). The central question presented by this

       case—whether the minor included in this statute must be the party injured by

       the alleged negligence or, instead, may be a non-injured party bringing a

       derivative claim—is an issue of first impression.


[16]   The statute applies to a claim based upon “health care” provided by a

       healthcare provider. I.C. § 34-18-7-1(b). “Health care” is defined as “an act or

       Court of Appeals of Indiana | Opinion 39A01-1509-CT-1498 | June 29, 2016   Page 10 of 13
       treatment performed or furnished, or that should have been performed or

       furnished, by a health care provider for, to, or on behalf of a patient during the

       patient’s medical care, treatment, or confinement.” I.C. § 34-18-2-13 (emphasis

       added). “Patient,” in turn, is defined as follows:


               an individual who receives or should have received health care
               from a health care provider, under a contract, express or implied,
               and includes a person having a claim of any kind, whether derivative or
               otherwise, as a result of alleged malpractice on the part of a health
               care provider. Derivative claims include the claim of a parent or
               parents, guardian, trustee, child, relative, attorney, or any other
               representative of the patient including claims for loss of services,
               loss of consortium, expenses, and other similar claims.


       I.C. § 34-18-2-22 (emphases added). The plain language of this statute includes

       derivative claimants as “patients,” and includes the claims of children as

       derivative claims. Our legislature could have drafted the definition of patients

       to exclude derivative claimants, but it elected not to do so. We are bound by

       the language it selected, which clearly includes derivative claimants as patients.


[17]   The portion of the statute that tolls the two-year limitations period likewise

       contains no limitation excluding derivative claimants. Instead, it merely says

       that the two-year limitations period applies “except that a minor less than six

       (6) years of age has until the minor’s eighth birthday to file.” I.C. § 34-18-7-

       1(b). Here, again, the General Assembly could have provided that the “minor”

       included within the tolling provision must be the person who underwent the

       allegedly negligent medical treatment. It did not do so. Given that the statute

       applies to “health care” negligence claims, that “health care” is provided to

       Court of Appeals of Indiana | Opinion 39A01-1509-CT-1498 | June 29, 2016     Page 11 of 13
       “patients,” that “patients” explicitly includes derivative claimants, and that

       there is no further limitation of these terms, we can only conclude that the

       tolling provision applies to children whether they are bringing direct or

       derivative medical malpractice claims. Therefore, we decline to reverse the trial

       court on this basis.


[18]   The Appellants argue that even if the tolling provision would apply to

       derivative claims brought by children, in this case it does not save their claim

       because the underlying claim was dismissed as untimely. They direct our

       attention to Ellenwine, in which our Supreme Court held that when an adult

       patient is the victim of medical negligence and dies as a result of the negligence,

       a derivative action for consortium under a wrongful death claim must be filed

       within the MMA’s two-year limitations period rather than under the limitations

       period provided by the statutory scheme governing wrongful death actions. 846

       N.E.2d at 664. In other words, if the underlying claim is time-barred, so must

       be the claim that derives from it. To hold otherwise would be to make an end-

       run around the purposes of the MMA—to “foster prompt litigation of medical

       malpractice claims.” Id.


[19]   We acknowledge the wisdom of the Ellenwine holding but find that it does not

       apply to child claimants who fall under the tolling provision. The General

       Assembly has carved out an explicit exception to the two-year statute of

       limitations for children in a limited and specific age range. We have already

       held that those children may be either direct or derivative claimants. It would

       render the tolling provision meaningless as to children who are derivative

       Court of Appeals of Indiana | Opinion 39A01-1509-CT-1498 | June 29, 2016   Page 12 of 13
       claimants to say that they are nonetheless bound by the two-year limitations

       period governing all other claims. It is well established that we may not

       interpret one provision of a statute in a way that renders other provisions of the

       statute meaningless. E.g., Henderson v. Coutee, 829 N.E.2d 1028, 1030 (Ind. Ct.

       App. 2005). Given that our legislature has decided to treat children under the

       age of eight in a special way for the purpose of the medical malpractice

       limitations period and has not limited the special treatment to direct claimants,

       we find that the tolling provision must apply whether the children are derivative

       or direct claimants. Consequently, the trial court did not err by determining

       that the Children in this case were not time-barred because of the two-year

       statute of limitations period governing the underlying claim from which their

       claim derives.


[20]   The judgment of the trial court is affirmed and remanded for further

       proceedings.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 39A01-1509-CT-1498 | June 29, 2016   Page 13 of 13
