                                                           FILED
                                                       Jan 19 2017, 7:58 am

                                                           CLERK
                                                       Indiana Supreme Court
                                                          Court of Appeals
                                                            and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
Chad J. Bradford                                          Gerald B. Coleman
O’Bryan, Brown and Toner, PLLC                            Coleman Stevenson, LLP
Indianapolis, Indiana                                     Indianapolis, Indiana
Karl L. Mulvaney
Jessica Whelan
Bingham Greenebaum Doll LLP
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dermatology Associates, P.C.                              January 19, 2017
and Sonya Campbell Johnson,                               Court of Appeals Case No.
M.D.,                                                     49A02-1512-PL-2189
Appellants-Petitioners,                                   Appeal from the Marion Superior
                                                          Court
        v.                                                The Honorable David J. Dreyer,
                                                          Judge
Elizabeth C. White,                                       Trial Court Cause No.
Appellee-Respondent,                                      49D10-1506-PL-18385

        v.

Commissioner of Indiana
Department of Insurance, and
Douglas J. Hill, Esq., Medical
Review Panel Chair,
Third Party Defendants.



Robb, Judge.

Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017           Page 1 of 21
                                Case Summary and Issue
[1]   On September 7, 2012, Elizabeth White visited Dr. Sonya Campbell Johnson at

      Dermatology Associates, P.C. (collectively, the “Providers”), for laser hair

      removal on her face. Due to a reaction between the makeup White was

      wearing and the treatment, part of White’s face was burned and remained

      discolored thereafter. In 2013, White filed a complaint for medical negligence

      against the Providers directly with the trial court, seeking damages in an

      amount not greater than $15,000 for her injury. Later, White moved to dismiss

      that complaint. The trial court granted the motion to dismiss without prejudice,

      and on November 18, 2014, White filed a proposed complaint with the Indiana

      Department of Insurance. The Providers filed a petition for preliminary

      determination and a motion for summary judgment alleging White failed to

      timely file her claim with the Department of Insurance. The trial court denied

      the motion for summary judgment but certified its order for interlocutory

      appeal. The Providers raise one restated issue for our review: whether the trial

      court erred in denying their motion for summary judgment. Concluding the

      statute of limitations bars White’s action and the Providers are entitled to

      judgment as a matter of law, we reverse.



                            Facts and Procedural History
[2]   White went to the offices of Dermatology Associates on September 7, 2012, for

      a laser hair removal procedure on her face. A few minutes after Dr. Johnson

      began performing the procedure, she stopped and asked if White had anything

      Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017   Page 2 of 21
      on her face. White replied that she was wearing mineral powder, and Dr.

      Johnson said the laser reacts to minerals. Dr. Johnson cleansed White’s face

      and completed the procedure. The part of White’s face that had been in contact

      with the laser prior to the cleansing immediately discolored, but Dr. Johnson

      said the discoloration would go away by the end of the day. Instead, the

      discoloration worsened and White’s skin peeled. Over time, the discoloration

      improved but did not completely go away.


[3]   On November 20, 2013, White filed a complaint for medical negligence in the

      Marion Superior Court 14, alleging the Providers were negligent in performing

      the laser hair removal. On December 12, 2013, White filed a motion for leave

      to amend her complaint to add a declaration that she was seeking damages in

      an amount not greater than $15,000.1 The trial court granted her motion and

      her amended complaint was filed.


[4]   In October 2014, the Providers filed a motion for summary judgment. White

      did not respond to the motion for summary judgment but instead filed a motion

      to dismiss her complaint without prejudice because she “has learned during the

      pendency of her action that her bodily injury is more serious than previously

      believed . . . and therefore believes that Fifteen Thousand and 00/100 Dollars

      ($15,000.00) will be insufficient compensation for her bodily injury.”




      1
       As will be discussed below, such a declaration allows a party to file a medical negligence complaint directly
      with the trial court instead of submitting a proposed complaint through the Department of Insurance for
      presentation to a medical review panel. See Ind. Code § 34-18-8-6(a).

      Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017                       Page 3 of 21
      Appellants’ Appendix at 84. Attached to her motion was her affidavit, stating

      in pertinent part:


              2. On September 7, 2012, I went to the offices of the [Providers]
              to have a laser hair removal procedure performed by [Dr.
              Johnson].
              3. [Dr. Johnson] performed the procedure in a negligent manner
              resulting in injury burning to my face.
              4. I experienced immediate discoloring and burning. I thought
              the discoloring would disappear; however, discoloring still
              remains and therefore, I do not believe that [$15,000] is sufficient
              to compensate me for the injury to my face.
              5. I have asked my attorney to take the necessary steps so that I
              can pursue additional monetary damages to compensate me for
              my injury.


      Id. at 88. The trial court granted White’s motion to dismiss her complaint on

      November 12, 2014.


[5]   On November 18, 2014, White filed a proposed complaint with the Indiana

      Department of Insurance, which was identical in all respects to the amended

      complaint she had filed in the trial court minus the limited damages

      declaration. On June 4, 2015, the Providers filed a Petition for Preliminary

      Determination and Motion for Summary Judgment in Marion Superior Court

      10, alleging White’s proposed complaint before the Department of Insurance

      was untimely. The trial court denied the motion for summary judgment on

      June 19, 2015. The Providers then filed a motion to reconsider, and, in the

      alternative, a motion to certify the order denying summary judgment for

      interlocutory appeal. Following a hearing, the trial court denied the Providers’


      Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017   Page 4 of 21
      motion to reconsider but certified the order denying summary judgment for

      interlocutory appeal.



                                 Discussion and Decision
                                     I. Standard of Review
[6]   Pursuant to Indiana Code section 34-18-11-1, a trial court may assert

      jurisdiction over threshold issues and preliminarily determine an issue of law or

      fact while the proposed complaint is pending before the medical review panel in

      the Department of Insurance. Haggerty v. Anonymous Party 1, 998 N.E.2d 286,

      294 (Ind. Ct. App. 2013). The grant or denial of summary judgment on a

      motion for preliminary determination is subject to the same standard of review

      as any other summary judgment ruling. Jeffrey v. Methodist Hosps., 956 N.E.2d

      151, 154 (Ind. Ct. App. 2011).


              When reviewing the grant or denial of summary judgment, we
              apply the same standard as the trial court. Summary judgment is
              proper only when the designated evidence shows that there is no
              genuine issue of material fact and the moving party is entitled to
              judgment as a matter of law. All facts and reasonable inferences
              therefrom are construed in a light most favorable to the
              nonmovant. The statute of limitations defense is particularly
              suitable as a basis for summary judgment. When the moving
              party 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. Any
              doubts as to the existence of a material issue are resolved in favor
              of the nonmovant.


      Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017   Page 5 of 21
      Anonymous Physician v. Wininger, 998 N.E.2d 749, 751 (Ind. Ct. App. 2013)

      (citations omitted).


                            II. Timeliness of White’s Action
                           A. Statute of Limitations in General
[7]   In general, a patient asserting a medical negligence claim must file her

      complaint within two years of the alleged malpractice. Ind. Code § 34-18-7-

      1(b). Except in limited circumstances, medical negligence claims in Indiana

      must first be submitted to a medical review panel through the Indiana

      Department of Insurance before they may be filed in court. Ind. Code § 34-18-

      8-4. The filing of a proposed complaint with the medical review panel tolls the

      applicable statute of limitations until ninety days following receipt by the

      patient of the panel’s decision. Ind. Code § 34-18-7-3(a); Comer v. Gohil, 664

      N.E.2d 389, 391 (Ind. Ct. App. 1996), trans. denied. Thus, the failure to file a

      proposed complaint with the Department of Insurance for consideration by a

      medical review panel within two years from the date of the alleged malpractice

      is ordinarily fatal to a medical negligence claim. Mayfield v. Cont’l Rehab. Hosp.,

      690 N.E.2d 738, 741 (Ind. Ct. App. 1998), trans. denied.


[8]   This case presents several exceptions to the general rules cited above. One of

      the circumstances in which a claim need not be first presented to a medical

      review panel is where the patient’s pleadings include a declaration that the

      patient seeks damages of $15,000 or less. Ind. Code § 34-18-8-6(a). In that




      Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017   Page 6 of 21
situation, the case may be commenced directly in the trial court. Id. Indiana

Code section 34-18-8-6(b) (“subsection (b)”) then provides that a patient who:

        (1) commences an action [directly in court] in the reasonable
            belief that damages in an amount not greater than [$15,000]
            are adequate compensation for the bodily injury allegedly
            caused by the health care provider’s malpractice; and


        (2) later learns, during the pendency of the action, that the bodily
            injury is more serious than previously believed and that
            [$15,000] is insufficient compensation for the bodily injury;


        may move that the action be dismissed without prejudice and,
        upon dismissal of the action, may file a proposed complaint
        subject to [medical review panel proceedings] based upon the
        same allegations of malpractice as were asserted in the action
        dismissed under this subsection. In a second action commenced
        in court following the medical review panel’s proceeding on the
        proposed complaint, the patient may recover an amount greater
        than [$15,000].


Indiana Code section 34-18-8-6(c) (“subsection (c)”) provides an exception to

the general two-year statute of limitations for a second action filed under these

circumstances, stating that if the patient:

        (1) commences an action under subsection (a) . . .;


        (2) moves under subsection (b) . . . for dismissal of that action;


        (3) files a proposed complaint subject to [presentation to a
            medical review panel] based upon the same allegations of
            malpractice as were asserted in the action dismissed under
            subsection (b) . . .; and
Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017   Page 7 of 21
              (4) commences a second action in court following the medical
                  review panel proceeding on the proposed complaint;


              the timeliness of the second action is governed by IC 34-18-7-
              1(c).


      Indiana Code section 34-18-7-1(c) in turn provides that if the patient meets the

      criteria of subsection (c), “the applicable limitations period is equal to the

      period that would otherwise apply to the patient under subsection (b) . . . plus

      one hundred eighty (180) days.”


[9]   A few Indiana cases have cited Indiana Code section 34-18-8-6 (or its

      predecessors, sections 16-9.5-9-2.1 (added in 1985, repealed in 1993) and 27-12-

      8-6 (repealed in 1998)). See, e.g., Narducci v. Tedrow, 736 N.E.2d 1288, 1290-91

      (Ind. Ct. App. 2000) (noting plaintiff rectified his error in filing his action in the

      trial court without first presenting his proposed complaint to a medical review

      panel by amending his complaint to request damages in the amount of $15,000

      or less); Albright v. Pyle, 637 N.E.2d 1360, 1364 (Ind. Ct. App. 1994) (holding

      $15,000 limit applies to entire action, not each defendant) (opinion on reh’g);

      see also Gleason v. Bush, 664 N.E.2d 1183, 1185 n.2 (Ind. Ct. App. 1996); Simms

      v. Schweikher, 651 N.E.2d 348, 349 n.1 (Ind. Ct. App. 1995), trans. denied;

      Hoskins v. Sharp, 629 N.E.2d 1271, 1274 n.3 (Ind. Ct. App. 1994) (all simply

      noting the existence of a statutory “shortcut” for bypassing the medical review

      panel). But no Indiana case has substantively addressed this statute for the

      purpose of answering the question the Providers pose to us: what are the

      requirements for triggering the 180-day extension of the statute of limitations?

      Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017   Page 8 of 21
[10]   The Providers claim White did not trigger the 180-day extension under the facts

       of this case and therefore her second action, filed with the Department of

       Insurance beyond the general two-year statute of limitations, is time-barred.

       We address first White’s claim that subsection (c) does not apply because she

       has not yet received a medical review panel opinion and has not yet

       commenced a second action in court; therefore, she asserts the Providers’

       petition for preliminary determination is premature. See Ind. Code § 34-18-8-

       6(c)(4). The Providers are not required to raise their statute of limitations

       affirmative defense in a preliminary determination action, see Ind. Code § 34-18-

       11-1(d); Miller v. Dobbs, 991 N.E.2d 562, 564 (Ind. 2013) (holding medical

       defendants’ statute of limitations defense is not waived for failure to move for a

       preliminary determination), but in the appropriate case, the preliminary

       determination procedure allows early resolution of a potentially dispositive

       issue. It is true White’s proposed complaint is still pending before the medical

       review panel and she has not yet commenced a second action in court.

       However, the facts pertinent to determining the statute of limitations question

       raised by the Providers are already set. The filing of a proposed complaint with

       the Department of Insurance may toll the applicable statute of limitations, Ind.

       Code § 34-18-7-3(a), but only if the proposed complaint itself is timely filed

       within the same limitations period, see Mayfield, 690 N.E.2d at 740-42 (affirming

       dismissal of patient’s action as time barred due to failure to file a proposed

       complaint with the Department of Insurance before the expiration of the two-

       year statute of limitations). Therefore, if White’s action is untimely now, it will

       also be untimely when and if it is filed in court after a review panel decision.
       Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017   Page 9 of 21
       The Providers’ request for a preliminary determination of this issue is not

       premature.


[11]   White further claims she does not need subsection (c) to apply because she filed

       her initial complaint in court within the applicable statute of limitations, and

       therefore subsection (b) allows her to dismiss that complaint and file her

       proposed complaint with the Department of Insurance within a reasonable

       period of time “[w]ithout regards to the statute of limitations,” as subsection (b)

       imposes no specific cut off period for filing a proposed complaint after

       dismissal. Appellee’s Brief at 8, 10-11. However, a complaint that is

       voluntarily dismissed is treated as if it never existed and thus, cannot toll the

       statute of limitations. Kohlman v. Finklestein, 509 N.E.2d 228, 232 (Ind. Ct.

       App. 1987), trans. denied. Although not arising in a medical negligence context,

       the procedural posture of Kohlman is very similar to the instant case: there, the

       plaintiff’s cause of action for conversion of personal property accrued in July

       1979. He filed suit to recover damages in municipal court in May 1981, but

       thereafter amended his prayer for damages to exceed the monetary

       jurisdictional limit of the municipal court and consequently, moved to

       voluntarily dismiss the case without prejudice for lack of jurisdiction. The trial

       court granted the motion to dismiss and the plaintiff refiled his complaint in

       superior court in October 1982. The trial court granted summary judgment to

       the defendant because the plaintiff’s second action was barred by the statute of

       limitations. We affirmed, holding the plaintiff’s “timely municipal court case

       cannot extend the time within which he could file his superior court case.” Id.


       Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017   Page 10 of 21
       at 232. Here, White alleges the Providers’ negligence occurred on September 7,

       2012, and therefore, her action accrued on that date. She timely filed her initial

       complaint seeking limited damages in the trial court on November 20, 2013, but

       then voluntarily dismissed that complaint and filed a proposed complaint with

       the Department of Insurance on November 18, 2014, in order to seek greater

       damages. Because White voluntarily dismissed her initial complaint, her

       current action is considered filed on November 18, 2014. In the absence of

       some mechanism for extending the statute of limitations past September 7,

       2014, White’s action is time-barred, as it was filed more than two years after the

       alleged malpractice.


                   B. Criteria to Extend the Statute of Limitations
[12]   The legislature provided such a mechanism within the statute allowing for

       dismissal and refiling of a medical negligence complaint. A patient who has

       filed an action directly in court seeking limited damages may dismiss that

       action—and thereafter have the standard two years after the action accrued plus

       an additional 180 days to file a new action seeking greater damages—if she

       learns, after commencing the original action and while that action is still

       pending in the trial court, that her bodily injury is more serious than she




       Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017   Page 11 of 21
       believed when she commenced her action and $15,000 will not be adequate

       compensation. See Ind. Code § 34-18-8-6(b)(2).2


[13]   The Providers contend White has an affirmative obligation to show she

       “obtained additional evidence or knowledge during the pendency of the court-

       filed suit” that her injuries were more serious than she initially believed in order

       to be given the benefit of the extended statute of limitations. Brief of Appellants

       at 24. White contends the phrase “later learns” should be interpreted solely

       under a subjective standard and therefore she has no obligation to produce

       evidence other than her own affidavit, which she claims shows “[she] learned

       by personal experience that when the discoloration did not initially disappear, it

       was worse than she previously believed.” Appellee’s Brief at 11-12.


[14]   Our rules of statutory construction are as follows:


                When courts set out to construe a statute, the goal is to determine
                and give effect to the intent of the legislature. The first place
                courts look for evidence is the language of the statute itself, and
                courts strive to give the words their plain and ordinary meaning.
                We examine the statute as a whole and try to avoid excessive
                reliance on a strict literal meaning or the selective reading of
                individual words. We presume the legislature intended the
                language used in the statute to be applied logically, consistent




       2
         If White is entitled to the extension of the statute of limitations, her proposed complaint was filed within
       that window (her cause of action accrued on September 7, 2012; two years plus 180 days from that date is
       March 6, 2015). Therefore, the only question before us is whether she is entitled to that additional time.

       Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017                         Page 12 of 21
               with the statute’s underlying policy and goals, and not in a
               manner that would bring about an unjust or absurd result.


       Cooper Indus., LLC v. City of S. Bend, 899 N.E.2d 1274, 1283 (Ind. 2009)

       (citations omitted). Further, we will not read into the statute that which is not

       expressed, so it is just as important to recognize what a statute does not say as it

       is to recognize what it does say. Weinberger v. Estate of Barnes, 2 N.E.3d 43, 47

       (Ind. Ct. App. 2013), trans. denied. Finally, as statutory procedures for bringing

       a medical negligence action are in derogation of common law, we strictly

       construe those statutes against limiting a patient’s right to bring suit. Mooney v.

       Anonymous M.D. 4, 991 N.E.2d 565, 580 (Ind. Ct. App. 2013), trans. denied.


[15]   The language employed in a statute is deemed to have been used intentionally.

       Anonymous Hosp. v. A.K., 920 N.E.2d 704, 708 (Ind. Ct. App. 2010). Here, the

       statute says the patient may dismiss a limited damages suit in court and have

       additional time to refile a medical negligence claim through the Department of

       Insurance if she “later learns . . . that the bodily injury is more serious than

       previously believed and that [$15,000] is insufficient compensation . . . .” Ind.

       Code § 34-18-8-6(b)(2) (emphasis added). “Learn” is defined as to “acquire

       knowledge of (a fact); to become acquainted with or informed of (something);

       to hear of, ascertain.” Oxford English Dictionary,

       http://www.oed.com/view/Entry/106716?redirectedFrom=learn#eid (last

       visited Nov. 17, 2016). Use of the phrase “later learns” implies something

       additional has to have occurred since the original lawsuit was filed in court:

       that is, the patient has subsequently acquired knowledge of or received

       Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017    Page 13 of 21
       information about something she did not previously know with regard to her

       injury and $15,000 is insufficient to compensate her for that more serious

       injury.3 Subsection (b) does not say simply that the plaintiff may dismiss her

       original complaint and have an extended statute of limitations for refiling with

       the Department of Insurance in order to seek additional damages. The statute

       imposes requirements upon such a course of action—that the patient learns her

       bodily injury is more serious than previously believed. The inclusion of these

       requirements implies there is some burden on the patient to show she has

       dismissed and refiled for a reason other than seeking more damages for the

       same injury. To adopt White’s reading of the statute would be to read those

       requirements out of the statute.


[16]   White alleges her face was burned by the laser treatment resulting in

       discoloration. White’s original and amended complaints filed in the trial court

       and her proposed complaint filed with the Department of Insurance all allege,

       with respect to her injury:

               9. [White’s] face immediately began to experience discoloring.


               ***




       3
         We do not mean to imply that the “something additional” necessarily has to be medical evidence, such as a
       second doctor’s opinion. As White points out, “a patient can ‘learn’ something in a variety of ways, for
       example, by being told, by reading or by personal experience.” Appellee’s Brief at 11.

       Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017                   Page 14 of 21
         11. [Dr. Johnson] stated that the discoloring would go away by
         the end of the day.


         12. The burned area on [White’s] face turned dark and peeled
         until a layer of skin referred to as “the white meat” showed.


         ***


         14. Although [White’s] scarring has improved, it still remains
         after several months.


Appellant’s App. at 31 (proposed complaint); 35 (original complaint); and 45

(amended complaint). White’s affidavit, attached to the motion to dismiss her

original action in the trial court, avers:


         3. [Dr. Johnson] performed the [laser hair removal] procedure in
         a negligent manner resulting in injury burning to my face.


         4. I experienced immediate discoloring and burning. I thought
         the discoloring would disappear; however, discoloring still
         remains and therefore, I do not believe that [$15,000] is sufficient
         to compensate me for the injury to my face.


Id. at 88. Even under a wholly subjective standard, White’s pleadings and her

affidavit fail to demonstrate that she is entitled to the benefit of the extended

statute of limitations. She has not alleged she learned anything new or different

about her injury after filing her original complaint.4 Moreover, her pleadings




4
  As we noted in footnote 3, supra, we agree with the dissent that a person may “later learn” something in a
variety of ways and we do not disagree that the threshold for new information may be relatively low.

Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017                     Page 15 of 21
       and affidavit fail to demonstrate her bodily injury is more serious than she

       originally believed; in fact, they demonstrate her injury is exactly the same now

       as it was when she commenced her original action in court seeking $15,000 or

       less. For instance, White does not allege the discoloration worsened between

       November 2013 and November 2014 or that she learned of additional current

       or future side effects from the burning other than the remaining discoloration.

       The only thing that appears to have changed is that she now wants the

       possibility of recovering a greater amount of damages for the same injury.


[17]   White posits this decision will now require the trial court in the original action

       “to determine what injury a plaintiff has suffered, require a plaintiff to submit

       medical evidence that the injury has worsened and then . . . decide if the

       medical evidence submitted by a plaintiff is sufficient to conclude that the injury

       has worsened.” Appellee’s Brief at 14. We disagree that the trial court will

       have any such obligation. If the patient files a motion for voluntary dismissal of

       her complaint, it is not the trial court’s function to question on the patient’s

       behalf whether dismissal is actually a good idea or might result in prejudice to

       the patient. Cf. Principal Life Ins. Co. v. Needler, 816 N.E.2d 499, 502 (Ind. Ct.




       However, even accepting that White could learn from looking into her mirror every day that a lifetime of
       facial disfiguration was worth more to her than $15,000, see ¶ 27, supra, that amounts to speculation here
       because White did not allege that in her pleadings. Dr. Johnson told her at the time of the procedure that the
       discoloration would go away by the end of the day. When White filed her original complaint over a year
       later, however, her face was still discolored. When she dismissed and refiled her complaint, her face
       remained discolored. Thus, she knew from the outset of this litigation that her face was discolored from the
       procedure and she did not aver anything differently in her second complaint. The specific language of the
       statute requires the plaintiff affirmatively show something has changed since the original allegations and
       White has failed to do that here.

       Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017                      Page 16 of 21
       App. 2004) (noting that voluntary dismissals should generally be allowed unless

       the defendant will suffer some legal prejudice other than the prospect of a second

       lawsuit).


[18]   The facts of this case are not in dispute. The Providers have shown that White

       did not file her proposed complaint with the Department of Insurance within

       two years of her action accruing. White in turn has failed to establish she is

       entitled to the benefit of Indiana Code sections 34-18-8-6(c) and 34-18-7-1(c)

       extending the statute of limitations in certain circumstances. Section 34-18-8-

       6(c) imposes certain requirements on the ability to benefit from the extended

       time to file a medical negligence action, and White has failed to meet those

       requirements. White had every right to dismiss and refile her cause of action in

       order to seek additional damages, but under these facts, she needed to do so

       within the two-year statute of limitations.



                                               Conclusion
[19]   The Providers are entitled to judgment as a matter of law on their motion for

       summary judgment alleging White’s proposed complaint was filed with the

       Department of Insurance outside the applicable statute of limitations. The trial

       court’s denial of the motion is reversed.


[20]   Reversed.


       Brown, J., concurs.


       Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017   Page 17 of 21
       Mathias, J., dissents.




                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Dermatology Associates, P.C.                             Court of Appeals Case No.
       and Sonya Campbell Johnson,                              49A02-1512-PL-2189
       M.D.,
       Appellants-Petitioners,

               v.

       Elizabeth C. White,
       Appellee-Respondent,

               v.

       Commissioner of Indiana
       Department of Insurance, and
       Douglas J. Hill, Esq., Medical
       Review Panel Chair,
       Third Party Defendants.



       Mathias, Judge, dissenting.


[21]   I respectfully dissent. The majority’s explanation of the statutory framework of

       the issue before us is commendable. I disagree only with the majority’s

       interpretation of this statutory framework.

       Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017          Page 18 of 21
[22]   As noted by the majority, a patient who has filed an action seeking less than

       $15,000 in damages directly in a trial court may dismiss that action and

       thereafter have the benefit of the normal two-year statute of limitations, plus an

       additional 180 days, to file a new action seeking damages in excess of $15,000.

       See Ind. Code §§ 34-18-8-6(b), 34-18-7-1(c). To qualify for this additional 180-

       day extension of the normal statute of limitations, the patient need only

       establish that she “later learn[s] during the pendency of the action, that the

       bodily injury is more serious than previously believed and that fifteen thousand

       dollars ($15,000) is insufficient compensation for the bodily injury.” I.C. § 34-

       18-8-6(b)(2).


[23]   The majority concludes that White must show that “something additional has

       to have occurred since the original lawsuit was filed in court: that is, the patient

       has subsequently acquired knowledge of or received information about

       something she did not previously know with regard to her injury and $15,000 is

       insufficient to compensate her for that more serious injury.” Slip op., supra, at

       pp. 13-14. The majority then notes that they do not mean to imply that this

       “something additional” “necessarily has to be medical evidence, such as a

       doctor’s opinion.” Id. at 14 n.2. Indeed, the majority agrees with White that “‘a

       patient can “learn” something in a variety of ways, for example, by being told,

       by reading or by personal experience.’” Id. (quoting Appellee’s Brief at 11)

       (emphasis added).




       Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017   Page 19 of 21
[24]   I write separately to emphasize that I believe that medical evidence, such as a

       physician’s expert opinion, is certainly not required to establish that a patient

       has “later learned” that her injury is more serious than originally believed.


[25]   However, unlike the majority, I also believe that, in the present case, White

       adequately established that she later learned that her injury was more serious

       than she originally believed. White originally pleaded that: her face

       immediately began to experience discoloration after the treatment; Dr. Johnson

       told her, incorrectly, that the discoloration would go away by the end of the

       day; that the burned area of her face turned dark and peeled, revealing the flesh

       underneath the skin; and that although her scarring had improved, it still

       remained after several months.


[26]   White’s affidavit, attached to the motion to dismiss her original action, averred

       that: Dr. Johnson negligently burned her face; she experienced immediate

       burning and discoloration; she believed the discoloration would disappear; and

       the discoloration still remained and therefore she did “not believe that [$15,000]

       is sufficient to compensate me for the injury to my face.” Appellant’s App. p.

       88. White’s proposed complaint she submitted to the Indiana Department of

       Insurance contained similar allegations. See id. p. 31.


[27]   The majority concludes that White failed to allege that she learned anything

       new or different about her injury after filing her original complaint. However,

       she averred that the discoloration still remained. Thus, because the

       discoloration had still not improved, White came to the personal conclusion


       Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017   Page 20 of 21
       that a lifetime of facial disfiguration was worth more than $15,000. In terms of

       the statute, White “learned” that her claim, based upon her permanent facial

       disfiguration, was worth more than $15,000. Under the facts and circumstances

       before us, I think a woman’s ultimate decision that a lifetime of facial

       disfiguration was worth more than $15,000 is something she could, and here

       did, “learn” from looking into the mirror every day, trying without success to

       use make-up to make the scarring less noticeable. I believe this alone is

       sufficient to trigger the 180-day extension provided for by Indiana Code section

       34-18-7-1(c).


[28]   Accordingly, I would affirm the trial court’s denial of the Provider’s motion for

       summary judgment.




       Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017   Page 21 of 21
