      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any
                                                                              May 01 2020, 8:34 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                       CLERK
                                                                               Indiana Supreme Court
      estoppel, or the law of the case.                                           Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Robert J. Palmer                                         Clint A. Zalas
      Mishawaka, Indiana                                       Alex C. Bowman
                                                               South Bend, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Anonymous Physician,                                     May 1, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CT-2278
              v.                                               Appeal from the St. Joseph
                                                               Superior Court
      Ian Michelle Thompson,                                   The Honorable Jenny Pitts-
      Appellee-Plaintiff                                       Manier, Judge
                                                               Trial Court Cause No.
                                                               71D05-1805-CT-198



      Altice, Judge.


                                               Case Summary


[1]   Anonymous Physician (Physician) last provided medical care to Ian Thompson

      in 1999. Many years later, Thompson filed a proposed medical malpractice

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2278 | May 1, 2020                      Page 1 of 13
      complaint against him. Physician filed a motion for summary judgment,

      arguing that Thompson’s claims were barred by the applicable statute of

      limitations. The trial court denied summary judgment and, on Physician’s

      motion, certified the order for interlocutory appeal.


[2]   We reverse and remand.


                                       Facts & Procedural History


[3]   Physician, as an OB/GYN, treated Thompson at the South Bend Clinic

      between January 1997 and early 1999, when Thompson was in her early

      thirties. Prior to seeing Physician, Thompson had a rather complex history of

      gynecological issues and procedures, which included three cervical biopsies. As

      a result, Thompson had a significantly shortened cervix.


[4]   When Thompson became pregnant in early 1997, Physician determined that

      Thompson needed a transvaginal cerclage to help prevent preterm labor due to

      the condition of her cervix. Physician surgically placed the transvaginal

      cerclage in her cervix in April 1997. Despite this, Thompson went into preterm

      labor and her son was delivered via cesarean section, not performed by

      Physician, on July 21, 1997. During one of her postpartum visits, the cerclage

      was removed by Physician in the office.


[5]   By January 1998, Thompson was pregnant again and sought treatment from

      Physician. Due to the high-risk nature of the pregnancy, Physician consulted

      with Dr. Kurt Stiver, a maternal fetal medicine specialist, to determine whether


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2278 | May 1, 2020   Page 2 of 13
      a cerclage should be used and, if so, whether a transabdominal cerclage would

      be preferred over a transvaginal cerclage. Physician noted that he had no

      experience with a transabdominal cerclage and would need another provider to

      perform the procedure if indicated. Dr. Stiver saw Thompson on February 24,

      1998, and determined that a transabdominal cerclage was the best option. Dr.

      Stiver referred Thompson to Dr. Leo Bonaventura for placement of the

      transabdominal cerclage.


[6]   Thompson had a transabdominal cerclage placed sometime in March 1998, but

      the record before us contains no verification that Dr. Bonaventura performed

      the surgery and no records relating to that procedure. It is clear, however, that

      Physician was not involved in the procedure, as he had never – and has never

      since – placed or removed a transabdominal cerclage. 1


[7]   Physician then resumed care of Thompson throughout her pregnancy, which

      ended with an elective cesarean section on September 8, 1998. Prior to the

      surgery, Thompson and Physician discussed sterilization options, including a

      hysterectomy, and decided on a bilateral partial salpingectomy (removal of a

      portion of her fallopian tubes) to be done along with the cesarean section. The




      1
       Based on research, Physician understood that removal of transabdominal cerclages can be “very difficult.”
      Appellant’s Appendix Vol. 3 at 46. Regarding the risks, he explained during his deposition:
            Again, I don’t do them, so it would just be relying on what I’ve read. Number one, you
            sometimes can’t see it because of scar tissue. Again, they can have significant bleeding, which
            can lead to transfusions, hysterectomy…. And then the risk of injuring adjacent structures,
            because you’re working next to the bladder, the intestines. So from what I have read, it can be
            very difficult to remove, and you can have pretty significant complications from that.
      Id. Given these risks, “it’s not uncommon for a transabdominal cerclage to never be removed.” Id. at 55.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2278 | May 1, 2020                      Page 3 of 13
      pre- and post-operative medical reports indicate that the transabdominal

      cerclage remained in place. Although it is unclear whether these reports were

      ever provided to Thompson, Physician testified in a deposition, based on his

      standard operating procedure: “I just know that it was part of our discussion

      preoperatively through the consent process that [the cerclage] would stay in

      place[.]” Appellant’s Appendix Vol. 3 at 57. The only procedures planned and

      consented to were the cesarean section and the bilateral partial salpingectomy.

      Removal of the transabdominal cerclage was not part of the planned operation.


[8]   Thompson had postpartum visits with Physician in September and October

      1998. The brief records from these appointments make no reference to any

      discussion regarding the transabdominal cerclage.


[9]   On November 20, 1998, Thompson had her final office visit with Physician for

      a follow-up pap smear. Thompson was also diagnosed with a (reoccurring)

      umbilical hernia at the time. Physician referred Thompson to another

      physician to treat the hernia. Upon receiving the results of the pap, Physician

      also referred her to a gynecological oncologist for a colposcopy and opinion

      regarding whether a total hysterectomy was needed. Dr. Katherine Look

      examined Thompson in March 1999 and advised that she proceed with either a

      LEEP conization or a hysterectomy. Thompson indicated that she would

      discuss the options with her husband and then get back in touch with Dr. Look,

      but Thompson never followed up with Dr. Look. Thompson’s last contact with

      Physician for treatment was a phone call in April 1999.



      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2278 | May 1, 2020   Page 4 of 13
[10]   On August 18, 2014, Thompson had a gynecological visit with Dr. Carlton

       Lyons for treatment of a uterine mass and related pelvic pain. Thereafter, on

       April 29, 2015, Dr. Lyons performed a total hysterectomy on Thompson, along

       with other related procedures. During the surgery, Dr. Lyons discovered and

       removed the transabdominal cerclage, which had “generat[ed] tremendous scar

       tissue and adhesions” between the bladder and left side of the uterus. Id. at 3.

       As a result, the surgery took a great deal of time.


[11]   On October 12, 2016, Thompson filed her proposed complaint with the Indiana

       Department of Insurance (the Department). Thompson alleged, incorrectly,

       that Physician performed the surgery that placed the transabdominal cerclage.

       Thompson went on to allege that Physician negligently failed to remove the

       transabdominal cerclage at the time of her 1998 cesarean section and failed to

       inform her both that it was not removed and of the risks of retaining the

       cerclage. Thompson alleged, in the complaint, that the “negligent conduct was

       not realized, nor in the exercise of ordinary diligence could it be realized, until

       April 29, 2015” when Dr. Lyons discovered the cerclage. Id. at 12.


[12]   While the matter remained pending with the Department, Physician invoked

       the jurisdiction of the trial court in May 2018 by filing a motion for preliminary

       determination to compel discovery. Thereafter, on April 17, 2019, Physician

       filed the instant motion for summary judgment arguing that the claims were

       barred by the two-year medical malpractice statute of limitations. In support of

       his motion, Physician noted that the alleged malpractice occurred in 1998,

       approximately eighteen years before Thompson’s proposed complaint was filed.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2278 | May 1, 2020   Page 5 of 13
       Further, Physician designated evidence that Thompson knew, or should have

       known, in 1998 that the transabdominal cerclage remained in place following

       the cesarean section. The designated evidence included medical records from

       the South Bend Clinic (including records related to Physician’s treatment of

       Thompson), medical records from Dr. Lyons’s treatment of Thompson, and

       Physician’s deposition taken in October 2018.


[13]   Thompson filed a response to the motion for summary judgment on May 17,

       2019. In her response, Thompson summarized her position as follows:


               Physician failed to inform Ms. Thompson … that the cerclage—a
               polyester—fiber vestige of Ms. Thompson’s fertility—remained
               wrapped around her cervix. Not until seventeen years later
               would Ms. Thompson discover the abandoned cerclage in the
               painful fibrotic mess filling her abdomen. Here, the designated
               evidence makes clear that Physician remained silent as to the
               presence of the cerclage and Physician’s silence was negligent.
               Ms. Thompson remained unaware of the cerclage until April
               2015.


       Id. at 72-73. Thompson filed no additional designated evidence in support of

       her summary judgment response.


[14]   The trial court held a brief summary judgment hearing on June 26, 2019. At

       the hearing, counsel for Thompson acknowledged that Thompson had not been

       deposed and, thus, indicated “unfortunately I’m not operating with a record of

       what the Plaintiff has testified to.” Transcript at 14. Despite this lack of

       deposition testimony, counsel indicated a belief that Thompson thought the

       cerclage was removed at the time of the cesarean section. Further, counsel

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2278 | May 1, 2020   Page 6 of 13
suggested that Thompson did not actually learn that the cerclage remained in

place until the 2015 hysterectomy. The following colloquy took place between

Thompson’s counsel and the trial court:


        [Court]:     So if we haven’t taken her deposition, the lack of
        consultation is the absence of a note in the record? What’s the
        evidence to show there’s a lack of consultation?


        [Counsel]: That there is - - that there’s a medical record that
        lacks that consultation.


        [Court]:         Okay. So it’s an absence of information.


        [Counsel]: That’s correct. Yeah. And that’s where - - I believe
        that that’s part of where this dispute of material fact comes in. Is
        that you have - - you have the Defendant testifying that, “This is
        what I should have said,” the records say something different,
        and the Plaintiff who has pled that that’s not - - that I - - “I had
        no idea that this was what the circumstance was until my
        subsequent physician told me 18 years down the road.”


Id. at 15. Physician’s counsel concluded his remarks by observing:


        Your Honor, we’ve heard a lot about what the Plaintiff thought,
        what the Plaintiff knew. There’s no evidence. It would have
        been simple for them to obtain an affidavit from the Plaintiff to
        create a genuine issue of material fact as to what she understood.


        But we don’t have that. What we have is the designated
        evidence that we provided where she went to another physician
        in Indianapolis, had it … placed, she knew that the Defendant in
        this case does not do transabdominal cerclages, has never done
        them. The operative reports indicate that it was in place before

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2278 | May 1, 2020   Page 7 of 13
               the C section and was in place after the C section. So … that was
               approximately 18 years before the Complaint was filed.


                                                      ****


               We’re simply talking about was there information that she knew
               more than two years before she filed the proposed Complaint
               from which she could understand that the cerclage was not
               removed.


       Id. at 17-18.


[15]   The trial court took the matter under advisement and then issued an order, on

       July 12, 2019, denying Physician’s motion for summary judgment. On

       Physician’s motion, the trial court certified the order for interlocutory appeal on

       September 3, 2019. This court accepted jurisdiction on November 1, 2019.

       Physician now appeals from the denial of his motion for summary judgment.


                                           Discussion & Decision


[16]   When a trial court’s summary judgment order is challenged on appeal, our

       standard of review is the same as that of the trial court. Manley v. Sherer, 992

       N.E.2d 670, 673 (Ind. 2013). Summary judgment shall be granted “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.” Ind. Trial Rule 56(C). “We construe all factual inferences in favor of the

       non-moving party and resolve all doubts as to the existence of a material issue




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2278 | May 1, 2020   Page 8 of 13
       against the moving party.” Manley, 992 N.E.2d at 673. On review, we are

       limited to the designated evidence before the trial court. See T.R. 56(H).


[17]   Where, as here, a defendant in a medical malpractice action asserts the statute

       of limitations as an affirmative defense on summary judgment, the defendant

       bears the burden of establishing that the action was commenced outside that

       statutory period. Manley, 992 N.E.2d at 674. “Once the defendant has

       established that the action was filed outside the statute of limitation, the burden

       shifts to the plaintiff to establish ‘an issue of fact material to a theory that avoids

       the defense.’” Id. (quoting Boggs v. Tri–State Radiology, Inc., 730 N.E.2d 692,

       695 (Ind. 2000)); see also LeBrun v. Conner, 702 N.E.2d 754, 757 (Ind. Ct. App.

       1998) (“The burden is on the plaintiff to establish that she has exercised

       reasonable diligence to discover the alleged malpractice.”). Our Supreme Court

       has explained that this burden shifting is appropriate because “the facts

       establishing any incapacity or the reasonableness of the plaintiff’s diligence in

       filing a claim are uniquely within the plaintiff's knowledge.” Herron v. Anigbo,

       897 N.E.2d 444, 448 (Ind. 2008) (plurality opinion).


[18]   “The Indiana Medical Malpractice Act’s two-year statute of limitations runs

       from the date of the negligent act or omission.” Herron, 897 N.E.2d at 448

       (citing Ind. Code § 34-18-7-1(b)). “[W]here the constitutionality of th[is]

       occurrence-based limitations period as applied to a given case is in issue, the

       ultimate question becomes the time at which a patient ‘either (1) knows of the

       malpractice and resulting injury or (2) learns of facts that, in the exercise of

       reasonable diligence, should lead to the discovery of the malpractice and the

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2278 | May 1, 2020   Page 9 of 13
       resulting injury.’” Id. at 448-49 (quoting Booth v. Wiley, 839 N.E.2d 1168, 1172

       (Ind. 2005)). This critical date is referred to as the “trigger date.” Id. at 449.

       “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.


[19]   In this case, Physician established that Thompson did not file the action until

       October 12, 2016, about eighteen years after the alleged negligent conduct and

       well outside of the two-year medical malpractice statute of limitations. Cf.

       Manley, 992 N.E.2d at 674 (medical malpractice defendant met their initial

       burden on summary judgment by establishing that the action was filed four

       days after the two-year statute of limitations had run). Thus, the burden shifted

       to Thompson to establish a genuine issue of fact to rebut the defense. Cf. id.

       (holding that the plaintiff’s designated evidence established genuine issues of

       fact as to the trigger date of the malpractice claim).


[20]   Thompson argues, as she did below, that the affirmative defense was rebutted

       with evidence that she did not learn that the transabdominal cerclage remained

       in place (i.e., it was not removed by Physician during the 1998 cesarean section)

       until her 2015 hysterectomy, which was performed by Dr. Lyons. In other

       words, she claims that the designated evidence raises a question of fact

       regarding the proper trigger date, making summary judgment improper. We

       cannot agree, as there is no designated evidence that Thompson acted with

       reasonable diligence in this case.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2278 | May 1, 2020   Page 10 of 13
[21]   Once a movant designates evidence to support a prima facie showing that there

       are no genuine issues of material fact and that the movant is entitled to

       judgment as a matter of law, the nonmovant cannot simply rest upon the mere

       allegations of her pleadings. McDonald v. Lattire, 844 N.E.2d 206, 212 (Ind. Ct.

       App. 2006). “Rather, only those facts alleged by the respondent/nonmovant

       and supported by affidavit or other evidence ‘must be taken as true.’” Id.

       (quoting Blankenbaker v. Great Cent. Ins. Co., 281 N.E.2d 496, 500 (Ind. Ct. App.

       1972)); see also T.R. 56(E) (“When a motion for summary judgment is made

       and supported as provided in this rule, an adverse party may not rest upon the

       mere allegations or denials of his pleading, but his response, by affidavits or as

       otherwise provided in this rule, must set forth specific facts showing that there is

       a genuine issue for trial.”). Allegations in a complaint “are not testimony,

       affidavits, sworn statements, or evidence of any kind.” McDonald, 844 N.E.2d

       at 215.


[22]   Here, Physician’s designated evidence showed that he did not place the

       transabdominal cerclage in Thompson and has never placed or removed this

       type of cerclage in his practice. He also understood that there were risks

       associated with removal of transabdominal cerclages and that they could

       remain inside patients indefinitely sometimes. Additionally, Physician testified

       in his deposition that the only procedures planned and consented to by

       Thompson were the cesarean section and bilateral partial salpingectomy on

       September 8, 1998, and removal of the transabdominal cerclage was not part of

       the planned operation. Physician testified further that, based on his standard


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2278 | May 1, 2020   Page 11 of 13
       operating procedure: “I just know that it was part of our discussion

       preoperatively through the consent process that [the cerclage] would stay in

       place[.]” Appellant’s Appendix Vol. 3 at 57.


[23]   In addition to making a prima facie showing that the proposed complaint was

       filed well beyond the two-year statute of limitations, Physician designated

       evidence, as set out above, indicating that Thompson was actually aware of, or

       at the very least should have been aware of, the continued placement of the

       transabdominal cerclage following the 1998 surgery. Although the medical

       records from Thompson’s two postpartum appointments with Physician do not

       reference any discussions about the cerclage, this does not negate Physician’s

       deposition testimony that he would have discussed this preoperatively with her

       and that removal of the cerclage was not part of the planned procedures. 2


[24]   Thompson’s attempt to raise a question of fact based on unsupported

       allegations in her complaint – reasserted by her counsel at the summary

       judgment hearing – is improper. She could have submitted her own affidavit

       setting forth her knowledge or belief regarding the removal of the cerclage,

       when she first learned of its continued placement, and/or what occurred during

       her consultations with Physician, but she failed to designate any such evidence.

       Cf. McDonald, 844 N.E.2d at 215 (“McDonald should have sought and




       2
        We need not reach the issue presented by the parties regarding whether knowledge of the pre- and post-
       operative reports – which both documented the continued placement of the cerclage – should be imputed to
       Thompson. Regardless, Physician’s deposition testimony indicates that Thompson was placed on actual
       notice of this fact pre-operatively during discussions with her regarding the planned surgery.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2278 | May 1, 2020                  Page 12 of 13
       submitted sworn affidavits from Shelton and Hart if McDonald wished to

       designate their statements as evidence of a genuine issue of material fact

       precluding summary judgment.”). Considering only the properly designated

       evidence, we conclude that there is no genuine issue of fact regarding whether

       Thompson knew of the continued placed of the transabdominal cerclage at the

       time of her 1998 surgery.


[25]   In sum, Physician met his initial burden on summary judgment by designating

       prima facie evidence that the action was commenced outside that statutory

       period. Thompson, on the other hand, wholly failed to designate evidence to

       meet her burden of establishing an issue of fact to rebut the statute of limitations

       defense. Thus, the trial court erred when it denied summary judgment and, on

       remand, is directed to enter summary judgment in favor of Physician.


[26]   Judgment reversed and remanded.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2278 | May 1, 2020   Page 13 of 13
