                                                                           FILED
                                                                       Nov 28 2018, 9:17 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
ANONYMOUS PHYSICIAN AND                                   David J. Cutshaw
ANONYMOUS MEDICAL PRACTICE                                Kelley J. Johnson
David C. Jensen                                           Gabriel A. Hawkins
Robert J. Feldt                                           Cohen & Malad, LLP
Eichhorn & Eichhorn, LLP                                  Indianapolis, Indiana
Hammond, Indiana

ATTORNEYS FOR APPELLANT
ANONYMOUS HOSPITAL
Brian J. Paul
Andrew L. Campbell
Melissa M. Orizondo
Matthew K. Giffin
Faegre Baker Daniels, LLP
Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Anonymous Physician,                                      November 28, 2018
Anonymous Medical Practice,                               Court of Appeals Case No.
Anonymous Hospital,                                       18A-CT-323
Appellants-Petitioners,                                   Interlocutory Appeal from the
                                                          Lake Superior Court
        v.                                                The Honorable John M. Sedia,
                                                          Judge
Michelle Kendra, as Personal                              Trial Court Cause No.
Representative of the Estate of                           45D01-1706-CT-139
John Kendra, Deceased,
Appellee-Respondent



Court of Appeals of Indiana | Opinion 18A-CT-323 | November 28, 2018                           Page 1 of 10
      Crone, Judge.


                                              Case Summary
[1]   Anonymous Physician (“AP”), an employee of Anonymous Medical Practice

      (“AMP”), implanted a cardiac pacemaker with a defibrillator (“CRT-D”) in

      John Kendra at Anonymous Hospital (“AH”) in 2006. AP later performed

      other procedures related to the CRT-D. John died in 2012. In 2015, John’s

      daughter, Michelle Kendra, as the personal representative of his estate, filed a

      proposed medical malpractice complaint against AP, AMP, and AH

      (collectively “Appellants”) alleging that the CRT-D surgery and subsequent

      procedures were unnecessary. Appellants moved for summary judgment on the

      basis that Michelle’s complaint was filed outside the two-year statutory

      limitation period for medical malpractice claims. Michelle argued that the

      relevant statute was unconstitutional as applied and therefore the limitation

      period should be tolled. The trial court agreed with Michelle and denied

      Appellants’ summary judgment motion. Appellants contend that the trial court

      erred. We agree with Appellants and therefore reverse.


                                  Facts and Procedural History
[2]   In April 2006, sixty-three-year-old John was admitted to AH’s emergency room

      and was diagnosed with congestive heart failure and chronic pulmonary

      obstruction, among other things. AP implanted a CRT-D on May 1, and John

      was discharged five days later. AP subsequently performed various procedures




      Court of Appeals of Indiana | Opinion 18A-CT-323 | November 28, 2018       Page 2 of 10
      related to the CRT-D. John died on June 30, 2012, from congestive heart

      failure and chronic obstructive pulmonary disease.


[3]   On July 24, 2015, Michelle filed a proposed medical malpractice complaint

      against Appellants. The complaint alleged in pertinent part that as a result of

      AP’s unspecified negligence, John “suffered severe and permanent physical

      injuries and disabilities, endured great pain and suffering, mental distress and

      anguish and trauma, and, incurred reasonable medical and related expenses.”

      Appellants’ App. Vol. 2 at 55.1 In June 2017, Appellants filed a petition for

      preliminary determination and a motion for summary judgment asserting that

      Michelle’s complaint was untimely filed. See Ind. Code § 34-18-7-1 (medical

      malpractice claim may not be brought unless filed within two years after date of

      alleged malpractice). In support of their motion, Appellants designated

      portions of Michelle’s complaint and John’s medical records.


[4]   Michelle filed an opposing memorandum, in which she asserted that the CRT-

      D was medically unnecessary and “was used as a basis” for AP to perform

      numerous other procedures. Appellants’ App. Vol. 2 at 103. She also asserted

      that the statutory limitation period should be tolled because John “could not

      have known that he did not meet the criteria for the implantation” of a CRT-D.

      Id. at 104. In support of her memorandum, Michelle designated the affidavit of




      1
       The complaint also contains allegations of wrongful death, personal injury, and fraudulent concealment, all
      of which Michelle has since abandoned.

      Court of Appeals of Indiana | Opinion 18A-CT-323 | November 28, 2018                            Page 3 of 10
      physician Dr. Nadim Nasir, Jr., as well as her own affidavit, which reads in

      pertinent part as follows:


              4. No one in my family or in my acquaintance ever indicated
              that they had any awareness of [AP’s] misstatements or
              potentially unnecessary procedures and surgeries.

              5. I found out about [AP’s] misstatements and potentially
              unnecessary procedures and surgeries in or around October of
              2014 when I saw a newspaper article and a news story on
              television about the misrepresentations of [AP].


      Id. at 121. Appellants filed a motion to strike both affidavits.


[5]   The trial court held a hearing on Appellants’ motions and issued an order that

      reads in relevant part as follows:


              The question presented by [Appellants’] Motion for Summary
              Judgment is: as a matter of law, after all factual inferences are
              construed in favor of the Estate, and all doubts regarding the
              existence of a material issue are resolved against [Appellants],
              did John Kendra, and, after his death, his Estate, not know, nor
              in the exercise of reasonable diligence, could not have
              discovered, that an injury had been sustained within two years of
              John Kendra’s death on June 30, 2012?

              [Appellants have] established that the medical malpractice action
              was filed outside the statute of limitations. The Estate then has
              the burden to establish an issue of fact material to a theory that
              avoids the defense. The Estate designated medical records
              demonstrating that John Kendra had undergone, in addition to
              the implant of a CRT Defibrillator, 3 stress tests, 14
              echocardiograms, 3 carotid dopplers, 1 bypass, 19 AV
              Optimizations, 2 heart catheterizations, and subsequent surgeries

      Court of Appeals of Indiana | Opinion 18A-CT-323 | November 28, 2018     Page 4 of 10
        for generator replacement and new leads. The nature and
        general acceptance of the use of these tests in cardiac patients
        creates a material issue of fact as to whether John Kendra, or any
        other patient not schooled in medicine, would be prompted to
        know, nor in the exercise of reasonable diligence could have
        discovered, that their conduct could be the basis of a claim for
        medical malpractice.

        However, after he passed, is there a material issue of fact as to
        whether his Estate, and, particularly, his Personal
        Representative, would be prompted to know, or in the exercise of
        reasonable diligence could have discovered, that their conduct
        could be the basis of medical malpractice?

        The Court agrees that Nadir’s [sic] Affidavit should be stricken
        …. The Court also agrees that most of Michelle Kendra’s
        Affidavit should also be stricken. Hearsay declarations of the
        state of mind of her family members and acquaintances, and
        misstatements of [AP], without any foundation as to whom and
        when these misstatements were made, are clearly inadmissible.
        However, the seminal statement in her Affidavit, regardless of
        any lack of artful drafting, was that she, as Personal
        Representative of John Kendra’s Estate, did not become aware
        that the implant of a [CRT-D], 3 stress tests, 14 echocardiograms,
        3 carotid dopplers, 1 bypass, 19 AV Optimizations, 2 heart
        catheterizations, and subsequent surgeries for generator
        replacement and new leads that her father experienced during the
        last six years of his life had the potential of forming a basis for a
        claim of medical malpractice until October, 2014.

        Notwithstanding the fact that the implant and subsequent
        procedures could, indeed, ultimately found [sic] not to be
        medical malpractice or the cause of John Kendra’s death, the
        Estate should not be denied “… access to the courts and [its]
        ability to pursue a valid claim …[]” because John Kendra and his
        Estate simply did not know, or, even in the exercise of reasonable
        diligence, could not discover, any possibility that the implant and

Court of Appeals of Indiana | Opinion 18A-CT-323 | November 28, 2018        Page 5 of 10
              subsequent treatment and procedures, the nature of which and
              general acceptance of their use in cardiac patients like John
              Kendra, could be medical malpractice.

              IT IS THEREFORE ORDERED by the Court as follows:

              1. The Motion to Strike the Affidavit of Nadim Nasir, Jr., MD,
              is granted.

              2. The Motion to Strike the Affidavit of Michelle Kendra is
              granted in part and denied in part.

              3. The Motion for Summary Judgment … is denied.


      Appealed Order at 3-5 (citations omitted). Appellants were granted permission

      to file this interlocutory appeal.2


                                       Discussion and Decision
[6]   Appellants contend that the trial court erred in denying their summary

      judgment motion. “We review such rulings de novo. Pursuant to Indiana Trial

      Rule 56(C), a summary judgment movant must make a prima facie showing

      that there are no genuine issues of material fact and that it is entitled to

      judgment as a matter of law.” Matter of Sarkar, 84 N.E.3d 666, 672 (Ind. Ct.

      App. 2017) (quoting Morris v. Crain, 71 N.E.3d 871, 879 (Ind. Ct. App. 2017)).




      2
        Michelle does not appeal the ruling on Appellants’ motion to strike the affidavits. After the hearing,
      Appellants filed a motion to strike references that Michelle’s counsel had made during the hearing to another
      medical malpractice case for which an interlocutory appeal had been denied. The trial court did not rule on
      this motion, and AP and AMP contend that it should have been granted. Given our resolution of this
      appeal, we need not address that issue. The same goes for their assertion that the trial court should have
      stricken Michelle’s affidavit in full.

      Court of Appeals of Indiana | Opinion 18A-CT-323 | November 28, 2018                             Page 6 of 10
      “If the movant satisfies this burden, the nonmoving party may not rest on its

      pleadings, but must designate specific facts demonstrating the existence of a

      genuine issue for trial.” Id. (quoting Morris, 71 N.E.3d at 879). “Our review of

      a summary judgment motion is limited to those materials designated to the trial

      court.” Webb v. City of Carmel, 101 N.E.3d 850, 860 (Ind. Ct. App. 2018). We

      view the pleadings and designated materials and construe all facts and

      reasonable inferences from those facts in favor of the nonmoving party. Id. A

      trial court’s summary judgment ruling is cloaked with a presumption of

      validity, and the losing party bears the burden of showing that the trial court

      erred. Id. at 861. “Where a trial court enters specific findings and conclusions,

      they offer insight into the rationale for the trial court’s judgment and facilitate

      appellate review, but are not binding upon this court.” Id.


[7]   “The statute of limitations defense is particularly suitable as a basis for

      summary judgment.” Anonymous Physician v. Wininger, 998 N.E.2d 749, 751

      (Ind. Ct. App. 2013). The plaintiff need not anticipate a statute of limitations

      defense and plead matters in avoidance in the complaint. Bellwether Props., LLC

      v. Duke Energy Ind., Inc., 87 N.E.3d 462, 466 (Ind. 2017). But when the

      summary judgment movant “asserts the statute of limitations as an affirmative

      defense and establishes that the action was commenced beyond the statutory

      period, the burden shifts to the nonmovant to establish an issue of fact material

      to a theory that avoids the defense.” Wininger, 998 N.E.2d at 751.


[8]   Indiana Code Section 34-18-7-1 “is an ‘occurrence’ statute as opposed to a

      ‘discovery’ statute.” Brinkman v. Bueter, 879 N.E.2d 549, 553 (Ind. 2008).

      Court of Appeals of Indiana | Opinion 18A-CT-323 | November 28, 2018          Page 7 of 10
      “Because this statutory time limit begins to run upon the occurrence of the

      alleged malpractice, without regard to the date of actual or constructive

      discovery of injury or malpractice by a person sustaining harm, literal

      application of the statute has been found unconstitutional in certain situations.”

      Booth v. Wiley, 839 N.E.2d 1168, 1170-71 (Ind. 2005). In Martin v. Richey, 711

      N.E.2d 1273 (Ind. 1999), our supreme court held that the “statute of limitations

      may not constitutionally be applied to preclude the filing of a claim before a

      plaintiff either knows of the malpractice and resulting injury or discovers facts

      that, in the exercise of reasonable diligence, should lead to the discovery of the

      malpractice and the resulting injury.” Booth, 839 N.E.2d at 1171.


              Under an occurrence-based statute, … the critical issue is what
              reasonable diligence requires, not when the claim accrues or is
              discovered. Because the Medical Malpractice Act provides an
              occurrence-based limitations period, reasonable diligence requires more
              than inaction by a patient who, before the statute has expired, does or
              should know of both the injury or disease and the treatment that either
              caused or failed to identify or improve it, even if there is no reason to
              suspect malpractice. As a matter of law, the statute requires such a
              plaintiff to inquire into the possibility of a claim within the
              remaining limitations period, and to institute a claim within that
              period or forego it.


      Herron v. Anigbo, 897 N.E.2d 444, 449 (Ind. 2008) (emphasis added). “A

      plaintiff does not need to be told malpractice occurred to trigger the statute of

      limitations.” Brinkman, 879 N.E.2d at 555 (emphasis added).


[9]   The “critical date” on which a patient either knows of malpractice and the

      resulting injury or learns of facts that, in the exercise of reasonable diligence,

      Court of Appeals of Indiana | Opinion 18A-CT-323 | November 28, 2018            Page 8 of 10
       should lead to the discovery thereof is known as the “trigger date.” Herron, 897

       N.E.2d at 449. “The length of time within which a claim must be filed after a

       trigger date in an occurrence-based statute … varies with the circumstances.”

       Id. “A plaintiff whose trigger date is after the original limitations period has

       expired may institute a claim for relief within two years of the trigger date.” Id.

       “But if the trigger date is within two years after the date of the alleged

       malpractice, the plaintiff must file before the statute of limitations has run if

       possible in the exercise of due diligence.” Id. “If the trigger date is within the

       two-year period but in the exercise of due diligence a claim cannot be filed

       within the limitations period, the plaintiff must initiate the action within a

       reasonable time after the trigger date.” Id.


[10]   Here, Appellants contend that John “was aware of both his condition [i.e.,

       congestive heart failure and chronic pulmonary obstruction] and the surgery he

       would undergo for that condition, and he was also aware that his condition

       failed to improve in the years leading up to his death” from congestive heart

       failure and chronic obstructive pulmonary disease. AH Appellant’s Br. at 9; see

       also AP/AMP Appellants’ Br. at 39 (noting that John “was aware that the

       device was inserted for the purpose of treating his heart problems, and

       according to [Michelle], he suffered severe physical and mental injuries as a




       Court of Appeals of Indiana | Opinion 18A-CT-323 | November 28, 2018         Page 9 of 10
       direct consequence of the transplantation of the device.”).3 According to

       Appellants, “[n]othing else was required under Supreme Court precedent to

       trigger a duty to investigate the possibility of malpractice. Equitable tolling

       therefore does not save [Michelle’s] case from the statute of limitations.” Id.


[11]   We agree. Even if John and Michelle had no reason to suspect malpractice,

       reasonable diligence required them to inquire into the possibility of a claim

       before the proposed malpractice complaint was filed in 2015. We need not

       pinpoint the trigger date, but it was certainly no later than the date of John’s

       death in 2012, more than three years before the complaint was filed.

       Consequently, we reverse the denial of Appellants’ summary judgment motion.

       See Biedron v. Anonymous Physician 1, 106 N.E.3d 1079, 1100 (Ind. Ct. App.

       2018) (reaching same conclusion under substantially similar factual

       circumstances involving same Appellants and another patient who received

       allegedly unnecessary CRT-D), trans. pending.


[12]   Reversed.


       Najam, J., and Pyle, J., concur.




       3
        Michelle’s attempt to repudiate the relevant allegations in her complaint is not well taken. See Stewart v.
       Alunday, 53 N.E.3d 562, 568-69 (Ind. Ct. App. 2016) (holding that judicial admissions, which “may be
       contained in … current pleadings in the case being tried,” are “conclusive and binding” upon the party
       making them). So too is her assertion that Appellants failed to raise a tolling argument below and therefore
       waived it. See Appellants’ App. Vol. 2 at 37 (tolling argument in AP and AMP’s summary judgment brief).

       Court of Appeals of Indiana | Opinion 18A-CT-323 | November 28, 2018                            Page 10 of 10
