      MEMORANDUM DECISION                                              FILED
                                                                  Aug 17 2016, 9:16 am
      Pursuant to Ind. Appellate Rule 65(D), this                      CLERK
      Memorandum Decision shall not be regarded as                 Indiana Supreme Court
                                                                      Court of Appeals
      precedent or cited before any court except for the                and Tax Court

      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEES
      Edward Niksich                                            Carol A. Dillon
      Carlisle, Indiana                                         Bryan D. Stoffel
                                                                Bleeke Dillon Crandall, P.C.
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Edward Niksich,                                          August 17, 2016

      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               49A02-1601-CT-102
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Gary L. Miller,
      Dr. Malak Hermina, et al.,                               Judge.
      Appellees-Defendants.                                    Cause No. 49D03-1506-CT-019239




      Darden, Senior Judge


                                       Statement of the Case
[1]   Edward Niksich appeals the trial court’s denial of his Motion for Relief from

      Judgment, alleging he did not receive timely notice of the court’s final

      judgment, and also appeals the trial court’s order granting the Appellees’

      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CT-102 | August 17, 2016    Page 1 of 12
      “Motion for Preliminary Determination of Law and Motion for Summary
                      1
      Judgment.” We affirm.


                                                       Issue
[2]   We consolidate and restate the following to be dispositive to the resolution of

      this case: Whether the trial court abused its discretion by denying Niksich’s

      Motion for Relief from Judgment.


                                Facts and Procedural History
[3]   Drs. Malak Hermina, Richard Carr, and Alfred Talens (collectively, the

      “Doctors”) were at differing times employed as physicians by Corizon, Inc., a

      private company that contracted with the Indiana Department of Correction

      (“DOC”) to provide healthcare to inmates in certain DOC facilities. Dr.

      Hermina worked for the DOC from September 2005 until April 2012; Dr. Carr

      worked for the DOC from May 2007 until June 2009; and, Dr. Talens worked

      for the DOC from February 2006 until May 2011. Niksich has been

      incarcerated in the DOC since 1991.


[4]   When Niksich was processed for entry into the DOC, he tested positive for

      hepatitis and was referred to the Indiana State Prison medical facility for tests

      and monitoring. In April of 1994, Niksich tested positive for hepatitis C. For



      1
       Niksich also seeks to appeal the denial of his Motion to Compel Discovery. However, because Niksich did
      not make this argument to the trial court, we will not consider it. See Babinchak v. Town of Chesterton, 598
      N.E.2d 1099, 1103 (Ind. Ct. App. 1992) (noting that we will not consider arguments raised for the first time
      on appeal).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CT-102 | August 17, 2016           Page 2 of 12
      the remainder of the time Niksich was housed at the Indiana State Prison, until

      1999, prison doctors monitored his liver profiles.


[5]   In 1999, Niksich was transferred to the Pendleton Correctional Facility and was

      housed there until 2009. Dr. Hermina worked at the Pendleton Correctional

      Facility until January 2006 and administered care to Niksich. In January 2008,

      Niksich lost consciousness at his prison job and was sent to the Pendleton

      Correctional Facility infirmary where he was treated by Dr. Carr. According to

      Niksich, he explained to Dr. Carr that he had “tested positive for Hepatitis C

      and that [Dr. Carr] may want to check [his] liver enzymes and liver function.”

      Appellant’s App. p. 53.


[6]   Sometime in 2009, Niksich was moved to the Wabash Valley Correctional

      Facility. Dr. Talens administered care to Niksich while he was housed at that

      facility. According to Niksich, he informed Dr. Talens that his liver enzymes

      should be monitored and treated if they became elevated above normal levels.


[7]   By 2012, Niksich was residing at the Westville Correctional Facility. On

      November 29, 2012, Niksich was found unconscious in his cell and was

      transferred to a hospital for treatment. While in the hospital, Niksich slipped

      into a coma. On December 5, 2012, Niksich regained consciousness and was

      informed by hospital staff that he had experienced an upper gastrointestinal

      bleed, liver and kidney failure, anemia due to blood loss, and hepatic

      encephalopathy cirrhosis.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CT-102 | August 17, 2016   Page 3 of 12
[8]    Approximately twenty months later, on August 14, 2014, Niksich filed a

       Proposed Complaint of medical malpractice with the Indiana Department of

       Insurance. In his complaint, he alleged that the Doctors failed to provide him

       appropriate medical care while he was an inmate in the DOC. Niksich claimed

       he repeatedly informed Drs. Hermina, Carr, and Talens of his elevated liver

       enzyme levels but the doctors “fail[ed] to review medical information and/or

       documentation within [Niksich’s] medical file . . . which indicate[d] and

       establishe[d] a serious medical illness . . . [,]and the progression thereof[,] from

       mild liver inflammation and Hepatitis to late stage cirrhosis[.]” Id. at 138.


[9]    On June 11, 2015, the Doctors filed their joint Motion for Preliminary

       Determination of Law and Motion for Summary Judgment (hereinafter, the

       “Doctors’ Motion”), arguing Niksich’s complaint was time-barred by the

       Indiana Medical Malpractice Act’s two-year statute of limitations. On July 7,

       2015, Niksich filed a Motion for Continuance, requesting additional time to

       respond to the Doctors’ Motion. The trial court granted the motion on July 13,

       2015, and set a deadline of August 14, 2015, for the response.


[10]   Niksich filed his response to the Doctors’ Motion on July 21, 2015. On that

       same date, he filed a Motion to Compel Discovery. On July 22, 2015, the trial

       court granted the Doctors’ Motion and dismissed with prejudice Niksich’s

       complaint. Although, the chronological case summary (CCS) contains a

       notation indicating the court order was distributed to the parties; however,

       arguably, there is evidence in the record indicating the parties did not

       immediately receive copies of the court order.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CT-102 | August 17, 2016   Page 4 of 12
[11]   On July 24, 2015, the trial court denied Niksich’s Motion to Compel Discovery

       as moot, in light of the court’s July 22, 2015 ruling. On August 6, 2015, the

       Doctors filed a reply to Niksich’s response to the Doctors’ Motion. Niksich

       filed a response to the reply on August 17, 2015.


[12]   On October 20, 2015, Niksich sent a letter to the trial court inquiring as to

       whether the court had issued a ruling on the Doctors’ Motion. On October 30,

       2015, the Doctors’ counsel sent a letter to Niksich, informing him of the court’s

       ruling and enclosing a copy of the ruling. Counsel stated in the letter: “When

       we did not receive an Order, we called the Court and they informed us they

       never sent the Order out because my office failed to send an envelope. We

       therefore picked the Order up in person yesterday from the Court.” Id. at 24.

       Niksich received the letter on November 10, 2015. On that same day, Niksich

       sent a second letter to the trial court, requesting information on the status of the

       court’s ruling on the Doctors’ Motion. Niksich received a copy of the trial

       court’s July 22, 2015 order sometime between November 16 and 20, 2015.


[13]   On December 2, 2015, Niksich filed a Motion for Relief from Judgment under

       Indiana Trial Rule 60(B)(8), alleging he did not receive timely notice of the

       court’s ruling. In his motion, he asked the trial court to “vacate the [j]udgment

       of July 22, 2015 and re-enter the judgment to reflect the date of the Granting

       [sic] of this motion, and direct the clerk of the Court to notify the parties of the

       new entry date.” Id. at 13. Niksich maintained the “lack of notice . . . [violated

       his] right to appeal from an adverse final judgment . . . .” Id. The trial court



       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CT-102 | August 17, 2016   Page 5 of 12
       treated Niksich’s motion as a Motion to Correct Error and denied the motion

       on December 14, 2015, without a hearing. Niksich now appeals.


                                    Discussion and Decision
[14]   Although Niksich raises several issues on appeal, we consolidate and restate the

       issue for disposition as follows: Whether the trial court abused its discretion by

       denying Niksich’s Motion for Relief from Judgment.


[15]   Niksich’s motion for relief from judgment was premised on Indiana Trial Rule

       72. Trial Rule 72(D) imposes two duties on clerks of court. First, immediately

       upon the entry of a ruling upon a motion, an order or judgment, the clerk must

       serve a copy of the entry to each of the parties. Second, the clerk must make a

       record of such service. The CCS constitutes that record. See Collins v. Covenant

       Mut. Ins. Co., 644 N.E.2d 116, 117 (Ind. 1994). Trial Rule 72(E) provides for

       relief under certain circumstances for lack of notice, and states:

               Lack of notice, or the lack of the actual receipt of a copy of the
               entry from the Clerk shall not affect the time within which to
               contest the ruling, order or judgment, or authorize the Court to
               relieve a party of the failure to initiate proceedings to contest
               such ruling, order or judgment, except as provided in this section.
               When service of a copy of the entry by the Clerk is not evidenced
               by a note made by the Clerk upon the Chronological Case
               Summary, the Court, upon application for good cause shown,
               may grant an extension of any time limitation within which to
               contest such ruling, order or judgment to any party who was
               without actual knowledge, or who relied upon incorrect
               representations by Court personnel. Such extension shall
               commence when the party first obtained actual knowledge and


       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CT-102 | August 17, 2016   Page 6 of 12
               not exceed the original time limitation.


[16]   Notably, Niksich filed a Trial Rule 60(B) motion for relief from judgment – not

       a Trial Rule 72(E) motion for extension of time. Our courts have held that

       Trial Rule 72(E) is the exclusive method by which a litigant may seek to extend

       the time to file a notice of appeal. See Goodrich v. Dearborn County (In re Sale of

       Real Prop.), 822 N.E.2d 1063, 1068-70 (Ind. Ct. App. 2005) (citing Collins, 644

       N.E.2d at 116), trans. denied. But where a Trial Rule 60(B) motion clearly

       indicates that the basis for the motion is lack of notice under Trial Rule 72(E),

       we have treated the motion as a Trial Rule 72(E) motion, noting our preference

       for substance over form. See id.


[17]   Here, although captioned as a Motion for Relief from Judgment under Trial

       Rule 60(B), Niksich clearly requested that the trial court extend the time to

       appeal due to his lack of notice of the court’s July 22, 2015 order. See

       Appellant’s App. p. 13. Therefore, we will treat Niksich’s motion as a Trial

       Rule 72(E) motion for extension of time.


[18]   Trial Rule 72(E) applies where the CCS does not contain evidence that a copy

       of the trial court’s order was distributed to each party. Collins, 644 N.E.2d at

       117-18. We review a trial court’s ruling concerning Trial Rule 72(E) for an

       abuse of discretion. Atkins v. Veolia Water Indianapolis, LLC, 994 N.E.2d 1287,

       1288 (Ind. Ct. App. 2013). A trial court abuses its discretion when its decision

       is clearly against the logic and effect of the facts and circumstances or when the

       trial court has misinterpreted the law. Id.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CT-102 | August 17, 2016   Page 7 of 12
[19]   In this case, the CCS entry corresponding to the order granting the Doctors’

       Motion reads:

                07/23/2015 Order Granting Motion for Summary Judgment
                (Judicial Officer: Miller, Gary L)
                         Order Signed: 07/22/2015
                         Distribution to parties


       Appellant’s App. p. 1. The entry indicates the trial court’s order was distributed

       to the parties. Because Rule 72(E) clearly states that relief may only be

       obtained if the chronological case summary does not show that a copy of the

       entry was made and distributed to the parties, hence, Niksich cannot prevail

       given the facts of his case.


[20]   We reach this decision although there exists evidence that neither party

       received notice of the trial court’s July 22, 2015 order pursuant to Indiana Trial

       Rule 5(B). After the order was issued, on August 6, 2015, the Doctors filed a

       reply to Niksich’s response to their motion. Niksich then filed a response to the

       Doctors’ Motion on August 17, 2015. Later, counsel for the Doctors sent a

       letter to Niksich, dated October 30, 2015, informing him that because counsel

       failed to provide court staff with mailing envelopes, the July 22, 2015 order was

       not distributed to the parties. Nevertheless, we, like the panel in Lodge of the
                                                                                                              2
       Wabash, Ltd. v. Sullivan, 654 N.E.2d 40 (Ind. Ct. App. 1995), trans. denied, are




       2
         See Lodge of the Wabash, Ltd., 654 N.E.2d 40 (despite the Lodge’s claim it did not receive notice of court’s
       ruling and evidence court staff provided misleading information regarding issuance of the ruling, the Lodge

       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CT-102 | August 17, 2016              Page 8 of 12
       constrained to follow our Supreme Court’s pronouncement as set forth in

       Collins. Collins, 644 N.E.2d 116. As such, we conclude the trial court did not

       abuse its discretion when it denied Niksich’s request for relief.


[21]   Even if we were to reach the question of whether the trial court erred in

       granting the Doctors’ “Motion for Preliminary Determination of Law and

       Motion for Summary Judgment,” Niksich would not prevail.


[22]   A trial court should grant summary judgment if the pleadings and designated

       evidence demonstrate “there is no genuine issue as to any material fact and that

       the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule

       56(C). Our review of a trial court’s decision is limited to the evidence

       designated by the parties to the trial court. Perdue v. Gargano, 964 N.E.2d 825,

       831 (Ind. 2012).


[23]   The Medical Malpractice Act’s statute of limitations is found in Indiana Code

       section 34-18-7-1(b), which provides: “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. . . .” This is an occurrence-based statute of limitations,

       “meaning that an action for medical malpractice generally must be filed within




       was precluded from challenging receipt of notice because the CCS contained a specific reference to notice
       having been sent).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CT-102 | August 17, 2016           Page 9 of 12
       two years from the date the alleged negligent act occurred rather than from the

       date it was discovered.” Houser v. Kaufman, 972 N.E.2d 927, 933 (Ind. Ct. App.

       2012) (quotation omitted), trans. denied.


               “[I]n determining whether a medical malpractice claim has been
               commenced within the medical malpractice statute of limitations,
               the discovery or trigger date is the point when a claimant either
               knows of the malpractice and resulting injury, or learns of facts
               that, in the exercise of reasonable diligence, should lead to the
               discovery of the malpractice and the resulting injury. . . . The
               issue to be determined is the point at which a particular claimant
               either knew of the malpractice and resulting injury, or learned of
               facts that would have led a person of reasonable diligence to have
               discovered the malpractice and resulting injury. If this date is
               less than two years after the occurrence of the alleged
               malpractice, the statute of limitations bars the claim unless it is
               not reasonably possible for the claimant to present the claim in
               the remaining time, in which case the claimant must do so within
               a reasonable time after the discovery or trigger date. If such date
               is more than two years after the occurrence of the malpractice,
               the claimant has two years within which to commence the
               action.”


       David v. Kleckner, 9 N.E.3d 147, 152-53 (Ind. 2014) (citation omitted).


[24]   “When a defendant in a medical malpractice action asserts the statute of

       limitation as an affirmative defense, the defendant bears the burden of

       establishing that the action was commenced outside that statutory period.”

       Manley v. Sherer, 992 N.E.2d 670, 674 (Ind. 2013). If this is done, the burden

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

       avoids the defense.” Herron v. Anigbo, 897 N.E.2d 444, 448 (Ind. 2008) (quoting


       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CT-102 | August 17, 2016   Page 10 of 12
       Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000)). When the

       sole claim of medical malpractice is a failure to diagnose, the omission cannot

       as a matter of law extend beyond the time the physician last rendered a

       diagnosis. Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind. 1991).


[25]   The designated evidence established that Drs. Hermina, Carr, and Talens last

       treated Niksich in January of 2006, June of 2009, and May of 2011,

       respectively. These dates would have been the last opportunity the doctors had

       to diagnose Niksich, and the dates upon which the respective two-year periods

       under the statute of limitations began to run. It is undisputed that Niksich

       learned of his diagnosis on December 5, 2012, but did not file his complaint

       with the Indiana Department of Insurance until August 14, 2014, some twenty

       months later, and, more than a year after the statute of limitations ran on any

       medical malpractice claim Niksich could have filed against Dr. Talens, the

       latter of the three treating doctors.


[26]   Niksich argues the doctrine of continuing wrong, as well as fraudulent

       concealment apply to his case and tolled the running of the statute of

       limitations. However, for the doctrine of continuing wrong to apply, a

       physician’s conduct must be more than a single act. See Gradus-Pizlo v. Acton,

       964 N.E.2d 865, 871 (Ind. Ct. App. 2012) (the doctrine of continuing wrong

       applies where an entire course of conduct combines to produce an injury;

       doctrine applies when plaintiff demonstrates alleged injury-producing conduct

       was of a continuous nature). Fraudulent concealment tolls the statute of

       limitations in an action under the Medical Malpractice Act until (a) the end of

       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CT-102 | August 17, 2016   Page 11 of 12
       the physician-patient relationship, (b) the discovery by the patient of the

       malpractice, or (c) the discovery of information which in the exercise of

       reasonable diligence would lead to the discovery of the malpractice. Spoljaric v.

       Pangan, 466 N.E.2d 37, 40 (Ind. Ct. App. 1984), trans. denied.


                                                Conclusion
[27]   For the reasons stated above, the judgment of the trial court is affirmed.


[28]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CT-102 | August 17, 2016   Page 12 of 12
