                                                                               FILED
                                                                           Jul 18 2018, 8:51 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR THERESA                                      ATTORNEYS FOR ANONYMOUS
BIEDRON, SHERRI SITKO, AND                                 HOSPITAL
SUSAN ORR                                                  Brian J. Paul
David J. Cutshaw                                           Andrew L. Campbell
Kelley J. Johnson                                          Melissa M. Orizondo
Gabriel A. Hawkins                                         Faegre Baker Daniels LLP
Cohen & Malad, LLP                                         Indianapolis, Indiana
Indianapolis, Indiana
                                                           ATTORNEYS FOR ANONYMOUS
                                                           PHYSICIANS AND ANONYMOUS
                                                           MEDICAL PRACTICE
                                                           David C. Jensen
                                                           Robert J. Feldt
                                                           Alyssa Stamatakos
                                                           James L. Hough
                                                           Eichhorn & Eichhorn, LLP
                                                           Hammond, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Theresa Biedron, as the Personal                           July 18, 2018
Representative of the Estate of                            Court of Appeals Case No.
Louis Biedron, Deceased,                                   45A03-1708-CT-2012
Appellant-Respondent,                                      Appeal from the Lake Superior
                                                           Court
and                                                        The Honorable William E. Davis,
                                                           Judge
G. Anthony Bertig, Chairman of
                                                           Trial Court Cause No.
the Medical Review Panel, and


Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018                           Page 1 of 35
Stephen Robertson, as the                                  45D05-1701-CT-10
Commissioner of the Indiana
Department of Insurance,

Third-Party Respondents,

        v.

Anonymous Physician 1,
Anonymous Physician 2,
Anonymous Medical Practice,
and Anonymous Hospital,
Appellees-Petitioners



Anonymous Hospital,                                        Interlocutory Appeal from the
Anonymous Physician 1,                                     Lake Superior Court
Anonymous Physician 2, and                                 The Honorable Calvin D.
Anonymous Medical Practice,                                Hawkins, Judge
Appellants-Petitioners,                                    Trial Court Cause No.
                                                           45D02-1611-CT-105
        v.

Sherri Sitko, as Personal
Representative of the Estate of
Dorothy Sullivan, Deceased,
Appellee-Respondent,

and

G. Anthony Bertig, Chairman of
the Medical Review Panel, and
Stephen Robertson, as the
Commissioner of the Indiana
Department of Insurance,

Third-Party Respondents


Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018              Page 2 of 35
      Anonymous Hospital,                                        Interlocutory Appeal from the
      Anonymous Physician, and                                   Lake Superior Court
      Anonymous Medical Practice,                                The Honorable Bruce D. Parent,
                                                                 Judge
      Appellants-Petitioners,
                                                                 Trial Court Cause No.
              v.                                                 45D04-1609-CT-180

      Susan Orr, as Personal
      Representative of the Estate of
      Patricia Poteet, Deceased,
      Appellee-Respondent,

      and

      G. Anthony Bertig, Chairman of
      the Medical Review Panel, and
      Stephen Robertson, as the
      Commissioner of the Indiana
      Department of Insurance,

      Third-Party Respondents



      Crone, Judge.


                                               Case Summary
[1]   Louis Biedron, Dorothy Sullivan, and Patricia Poteet received treatment from

      one or two physicians employed by Anonymous Medical Practice (“AMP”).1

      One of the physicians implanted cardiac pacemakers in all three patients at


      1
        Anonymous Physician 1 in the Biedron lawsuit caption is Anonymous Physician 2 in the Sullivan/Sitko
      lawsuit caption and Anonymous Physician in the Poteet/Orr lawsuit caption. Anonymous Physician 2 in
      the Biedron lawsuit caption is Anonymous Physician 1 in the Sullivan/Sitko lawsuit caption. For the sake of
      clarity, if not consistency, we use abbreviations for the physicians that are appropriate to each lawsuit.

      Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018                       Page 3 of 35
      Anonymous Hospital (“AH”). Biedron died almost a year and a half after his

      surgery; Sullivan died during her surgery; and Poteet died almost a year and

      three months after her surgery.


[2]   Over nine years after Biedron’s death, his widow, Theresa Biedron, as the

      personal representative of his estate, filed a proposed complaint against

      Anonymous Physician 1 (“AP1”), Anonymous Physician 2 (“AP2”), AMP,

      and AH (collectively “the Biedron Defendants”), asserting claims for medical

      malpractice and wrongful death. The Biedron Defendants moved for summary

      judgment on the basis that the complaint was filed outside the two-year

      statutory limitation period for those claims. In response, Theresa argued that

      the period should be tolled by the doctrine of fraudulent concealment, and she

      submitted a supporting affidavit from a physician. The Biedron Defendants

      moved to strike the affidavit as not being based on personal knowledge, among

      other things. The trial court issued a final appealable order granting the

      Biedron Defendants’ motion to strike and motion for summary judgment.


[3]   Over seven years after Sullivan’s death, her daughter, Sherri Sitko, as the

      personal representative of her estate, filed a proposed complaint against

      Anonymous Physician 1 (“AP1”), Anonymous Physician 2 (“AP2”), AMP,

      and AH (collectively “the Sitko Defendants”), asserting claims for medical

      malpractice and wrongful death. The Sitko Defendants moved for summary

      judgment on the basis that the complaint was untimely filed. In response, Sitko

      argued that the limitation period should be tolled by the doctrine of fraudulent

      concealment, and she submitted an affidavit from the same physician used by

      Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018    Page 4 of 35
      Theresa. The Sitko Defendants moved to strike the affidavit for largely the

      same reasons as those asserted by the Biedron Defendants. The trial court

      issued an order denying the Sitko Defendants’ motion to strike and motion for

      summary judgment and certified its order for interlocutory appeal.


[4]   Over seven years after Poteet’s death, her daughter, Susan Orr, as personal

      representative of her estate, filed a proposed complaint against Anonymous

      Physician (“AP”), AMP, and AH (collectively “the Orr Defendants”), asserting

      claims for medical malpractice and wrongful death. The Orr Defendants

      moved for summary judgment on the basis that the complaint was untimely

      filed. In response, Orr argued that the limitation period should be tolled by the

      doctrine of fraudulent concealment and submitted an affidavit from the same

      physician used by Theresa and Sitko. Orr also argued that the medical

      malpractice statute of limitations was unconstitutional as applied. The Orr

      Defendants filed a reply and a motion to strike the affidavit. Orr filed a motion

      to strike the Orr Defendants’ reply, claiming that it raised issues not raised in

      their summary judgment motion. The trial court issued an order denying the

      Orr Defendants’ motion to strike and motion for summary judgment and

      granting Orr’s motion to strike and certified its order for interlocutory appeal.


[5]   This Court ultimately consolidated all three appeals. In the first appeal,

      Theresa argues that the trial court erred in granting the Biedron Defendants’

      motion for summary judgment on her wrongful death claims. In the second

      appeal, the Sitko Defendants argue that the trial court erred in denying their

      motion to strike and motion for summary judgment. And in the third appeal,

      Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 5 of 35
      the Orr Defendants argue that the trial court erred in granting Orr’s motion to

      strike and in denying their motion to strike and motion for summary judgment.

      We rule in favor of the defendants in all respects and therefore affirm in part

      and reverse in part.


                         Facts and Procedural History (Biedron)2
[6]   Biedron was born in 1931. In February 2004, he was diagnosed with congestive

      heart failure and was evaluated by AP1. According to AP1’s treatment notes,

      “The need to insert a biventricular pacemaker [was] discussed. The risks,

      options and benefits of the procedure [were] thoroughly outlined, and questions

      were answered. The patient was agreeable to this, and therefore, directly

      admitted to [AH] on February 19, 2004.” Biedron Appellant’s App. Vol. 2 at

      174. AP1 implanted a cardiac pacemaker (“CRT-P”), and Biedron was

      released from AH. In February 2005, after complaining of shortness of breath

      and swelling in his lower extremities, Biedron was treated at AH by AP2. On

      July 31, 2005, Biedron was found unresponsive and taken to AH, where

      cardiopulmonary resuscitation was attempted, but he died from what was

      diagnosed as cardiopulmonary arrest. His death certificate lists the causes of

      death as congestive heart failure and cirrhosis of the liver.




      2
        We heard oral argument on June 1, 2018, at the French Lick Resort as part of the Indiana State Bar
      Association’s Solo & Small Firm Conference. We thank the ISBA for facilitating the argument, and we
      thank counsel for their capable advocacy.

      Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018                     Page 6 of 35
[7]   In October 2014, Biedron’s widow Theresa, as personal representative of his

      estate, filed a proposed complaint for medical malpractice against the Biedron

      Defendants with the Indiana Department of Insurance (“IDOI”).3 The

      proposed complaint asserted malpractice claims based on AP1’s implantation of

      a CRT-P instead of a cardiac pacemaker with a defibrillator (“CRT-D”) and

      performance of unnecessary procedures such as stress tests and cardiac

      angiograms, as well as on various acts or omissions of the other Biedron

      Defendants, that allegedly resulted in Biedron’s wrongful death. More

      specifically, the proposed complaint asserted a claim of malpractice against

      AP2 (apparently based on his knowledge that Biedron should have received a

      CRT-D), a claim against AMP based on the acts and omissions of AP1 and

      AP2 and other employees, and a claim against AH based on its negligent

      granting of credentials and privileges to AP1 and AP2.


[8]   The Biedron Defendants filed a petition for preliminary determination4 and a

      motion for summary judgment, asserting that both the medical malpractice and

      the wrongful death claims were untimely filed. See Ind. Code §§ 34-18-7-1

      (medical malpractice tort claim may not be brought unless filed within two

      years after date of alleged malpractice) and 34-23-1-1 (wrongful death claim

      shall be commenced by personal representative of decedent within two years of




      3
       G. Anthony Bertig, the medical review panel’s chairman, and Stephen Robinson, IDOI’s commissioner,
      were joined as third-party respondents in this case and the two other cases on appeal.
      4
       Indiana Code Section 34-18-11-1 provides for the preliminary determination of an issue of law or fact that is
      not reserved for written opinion by the medical review panel under Indiana Code Section 34-18-10-22.

      Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018                         Page 7 of 35
      date of death); see also Ellenwine v. Fairley, 846 N.E.2d 657, 664-65 (Ind. 2006)

      (for adult victim of medical malpractice who dies within two years of

      occurrence of malpractice, (1) if death was caused by malpractice, malpractice

      claim terminates at patient’s death, and wrongful death claim must be filed

      within two years of occurrence of malpractice; (2) if death was caused by

      something other than malpractice, malpractice claim must be filed within two

      years of occurrence of malpractice, and any wrongful death claim must be filed

      within two years of date of death).


[9]   In response, Theresa argued that the statutory limitation period should be tolled

      by the doctrine of fraudulent concealment, and she designated the affidavit of

      Dr. Nadim Nasir, Jr., which reads in pertinent part as follows:5


              2. I have reviewed the medical records relative to AP1’s
              treatment of the patient, Louis Biedron.

              3. AP1 fell below the applicable standard of care for the
              following reasons:

              a) Implanting a CRT pacemaker in the patient when the patient,
              in fact, needed a CRT Defibrillator – a device that would have
              saved the patient’s life. At the time the CRT pacemaker was
              implanted, the patient had been diagnosed with Congestive Heart
              Failure and had an Ejection Fraction of less than 35% and had a
              prolonged QRS interval of > 120 msec. This patient met the
              criteria for implantation of a CRT-defibrillator; however, AP1



      5
        Paragraph 1 of the affidavit describes Dr. Nasir’s education, training, and experience, which are not at
      issue. We have replaced references to the Biedron Defendants’ names where necessary, and we have done
      likewise with the defendants’ names in the other affidavits excerpted below.

      Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018                        Page 8 of 35
        did not have defibrillator privileges; hence AP1 implanted a
        suboptimal device. By 2004, it was standard of care to place
        CRT[-]ICD and to limit implantation of CRT Pacemakers to
        patients who did not desire the additional life-saving benefits of
        the Implantable Cardioverter Defibrillator part of the CRT-ICD.
        AP1 failed to disclose this reasonable and more appropriate
        alternatives [sic] to the CRT[-]PPM, this disclosure would be
        mandatory for obtaining proper consent.

        b) Failing to disclose alternatives violated the standard of care for
        obtaining proper consent wherein risks, benefits and alternatives
        of a procedure are discussed. This breach of duty was predicated
        on AP1’s desire to recommend a procedure which he could
        perform for financial gain, rather than refer the patient to an
        Electrophysiologist for an expert evaluation of the patient’s
        condition and CRT-ICD implantation. At that time, AP1 did
        not have privileges for ICD implantation at AH. The failure of
        AP1 to either properly inform Mr. Biedron on appropriate
        options or to refer him to the appropriate expert ultimately cost
        Louis Biedron his life.

        4. AP2 fell below the standard of care when he continued with
        this facade in February of 2005 knowing that the pacemaker was
        inadequate therapy for this patient who instead needed a
        defibrillator, the prevailing standard of care nationally at that
        time. AP2 knowingly supported the negligent care and plan of
        action authored by AP1 rather than referring Mr. Biedron to a
        board certified Cardiac Electrophysiologist. If he did not know
        that ICD was the standard of care for Mr. Biedron, then he
        breached the standard of care due to his ignorance of this
        standard.

        5. Having consciously hidden the alternative of a CRT[-]ICD,
        AP1 violated his duty to Mr. Biedron by withholding this option.
        Absent a full disclosure of the options available to him, neither
        Mr. Biedron nor any lay person could know that a pacemaker
        was not the appropriate device for his condition. Neither Mr.

Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018     Page 9 of 35
               Biedron nor any lay person could know that he met the criteria
               for the implantation of a defibrillator. Mr. Biedron would have
               no idea or consideration that his doctor intentionally withheld
               vital life-saving options of therapy, and that this lie of omission
               was driven by financial motivations and not Mr. Biedron’s best
               interests nor that his doctor did not have the credentials for a
               defibrillator implantation. A lay person would not know that he
               needed the referral to a Cardiac Electrophysiologist for expert
               evaluation in order to implant the appropriate life-saving device.


       Biedron Appellant’s App. Vol. 2 at 142-44.


[10]   The Biedron Defendants filed a motion to strike Dr. Nasir’s affidavit that reads

       in relevant part as follows:


               1. The affidavit of Dr. Nasir is not admissible evidence as to the
               only issue present in the current Petition for Preliminary
               Determination, namely, the application of the statute of
               limitations to [Theresa’s] claim.

               2. In Dr. Nasir’s affidavit an attempt is made to inject the issue
               of whether [AP1 and AP2] complied with the standard of care.
               This issue has no bearing on whether the proposed complaint
               was timely filed. Further, the affidavit purports to summarize
               conversations [AP1 and AP2] had with Mr. Biedron, even
               though Dr. Nasir was not present, at any time, during Mr.
               Biedron’s treatment. Therefore, Dr. Nasir has no personal
               knowledge regarding the interaction between Mr. Biedron and
               either [AP1 or AP2]. For these reasons, Dr. Nasir’s affidavit
               must be stricken.

               ….



               7. Further, Dr. Nasir’s affidavit violates [Indiana Evidence Rule]

       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018     Page 10 of 35
               704(b) because Dr. Nasir testified to statements regarding the
               state of mind of [AP1 and AP2 and Biedron], and regarding the
               truth or falsity of allegations.… In paragraph 5, Dr. Nasir
               testified about what “[a] lay person would not know.” But in this
               case, it is the knowledge of Mr. Biedron at issue, not an
               unnamed, average “lay person” that is relevant. Dr. Nasir did
               not – and cannot – offer opinions as to what Mr. Biedron knew
               or did not know. Rather his assertion about what “lay people”
               would know, or not know, is similarly speculative, without
               proper foundation, and inadmissible.

               8. [Theresa] also uses Dr. Nasir’s affidavit to incorrectly equate a
               violation of the standard of care with fraud. These two concepts
               are unrelated. There is no case law that permits this Court to
               find fraudulent concealment based upon expert testimony
               regarding the standard of care.


       Id. at 220-24.


[11]   In August 2017, after a hearing on all pending motions, the trial court issued a

       final appealable order that reads in pertinent part as follows:


               Upon review of the supporting documents, relevant case and
               statutory law, the Court now grants the petitions [for preliminary
               determination] and dismisses the claim of the
               Respondent/Plaintiff Theresa Biedron as personal representative
               of the Estate of Louis Biedron, deceased.

               The pertinent parts of the affidavit of Dr. Nasir relating to the
               issues on the summary judgment are inadmissable [sic]
               comments on the Petitioner/Defendants Doctors’ truthfulness
               and not on facts that would indicate concealment or fraud. The
               affidavit concerning these issues is ordered stricken.

               The Summary Judgment as to the complaint before the

       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 11 of 35
               malpractice board is beyond the statute of limitations and should
               be dismissed. The claim for wrongful death likewise is beyond
               the statute of limitations and should also be dismissed.


       Biedron Appealed Order at 1-2.


[12]   Theresa now appeals the trial court’s summary judgment ruling on her

       wrongful death claims and focuses her arguments solely on AP1’s alleged

       negligence, thereby implicitly conceding that her claims against the remaining

       defendants are purely derivative. She does not challenge the trial court’s ruling

       on the Biedron Defendants’ motion to strike Dr. Nasir’s affidavit.


                               Discussion and Decision (Biedron)

        Section 1 – The trial court did not err in granting the Biedron
                  Defendants’ summary judgment motion.
[13]   The sole pertinent issue in this case is whether the trial court erred in granting

       the Biedron Defendants’ summary judgment motion on Theresa’s wrongful

       death claims. We review a summary judgment ruling de novo. Broadbent v.

       Fifth Third Bank, 59 N.E.3d 305, 310 (Ind. Ct. App. 2016), trans. denied. “A

       party seeking summary judgment bears the burden to make a prima facie

       showing that there are no genuine issues of material fact and that the party is

       entitled to judgment as a matter of law.” Id. “Once the moving party satisfies

       this burden through evidence designated to the trial court, the non-moving

       party may not rest on its pleadings, but must designate specific facts

       demonstrating the existence of a genuine issue for trial.” Id. at 311. Mere

       speculation is insufficient to create a genuine issue of material fact to defeat
       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 12 of 35
       summary judgment. Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct. App.

       2008), trans. denied (2009).


[14]   “Our review of a summary judgment motion is limited to those materials

       designated to the trial court.” City of Bloomington v. Underwood, 995 N.E.2d 640,

       644 (Ind. Ct. App. 2013), trans. denied (2014). “[W]e construe the evidence in a

       light most favorable to the non-moving party and resolve all doubts as to the

       existence of a genuine factual issue against the moving party.” Broadbent, 59

       N.E.3d at 310. A trial court’s findings and conclusions on summary judgment

       are helpful in clarifying its rationale, but they are not binding on this Court.

       Whitley Cty. Teachers Ass’n v. Bauer, 718 N.E.2d 1181, 1186 (Ind. Ct. App. 1999),

       trans. denied (2000). We are not constrained to the claims and arguments

       presented to the trial court, and we may affirm a grant of summary judgment on

       any theory supported by the designated evidence. Manley v. Sherer, 992 N.E.2d

       670, 673 (Ind. 2013). The party that lost in the trial court has the burden of

       persuading us that the trial court erred. Underwood, 995 N.E.2d at 644.


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

       summary judgment.” Myers v. Maxson, 51 N.E.3d 1267, 1276 (Ind. Ct. App.




       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 13 of 35
       2016), trans. denied.6 A 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 party

       moving for summary judgment “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.” Myers, 51 N.E.3d at 1276.


[16]   The Biedron Defendants established that Theresa’s wrongful death action was

       commenced well beyond the two-year statutory period that ended, at the latest,

       on July 31, 2007, two years after Biedron’s death. Theresa asserts that the

       period should be tolled by the doctrine of fraudulent concealment, and she

       designated Dr. Nasir’s affidavit to establish an issue of fact material to that

       theory.


[17]   Under the doctrine of fraudulent concealment, “a person is estopped from

       asserting the statute of limitations as a defense if that person, by deception or

       violation of a duty, has concealed material facts from the plaintiff and thereby




       6
         Strictly speaking, Indiana Code Section 34-23-1-1 is a nonclaim statute, rather than a statute of limitation.
       Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1264-65 (Ind. 2014). A nonclaim statute creates a right
       of action if commenced within the statutory period, whereas a statute of limitation creates a defense to an
       action brought after the expiration of the statutory period. In re Paternity of M.G.S., 756 N.E.2d 990, 997 (Ind.
       Ct. App. 2001), trans. denied (2002). Because the limitation period of either may be tolled by fraudulent
       concealment, Alldredge, 9 N.E.3d at 1264-65, we use the terms interchangeably here. In Alldredge, our
       supreme court held that the fraudulent concealment statute (Indiana Code Section 34-11-5-1) may apply to
       toll the limitation period for a wrongful death action. Id. All three plaintiffs, who did not invoke the statute
       below, argue that the common law doctrine of fraudulent concealment may also toll that limitation period.
       The defendants do not disagree.

       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018                           Page 14 of 35
       prevented discovery of a wrong.” Boggs v. Tri-State Radiology, Inc., 730 N.E.2d

       692, 698 (Ind. 2000). “There are two types of fraudulent concealment, active

       and passive.” GYN-OB Consultants, LLC v. Schopp, 780 N.E.2d 1206, 1210 (Ind.

       Ct. App. 2003), trans. denied. “Passive or constructive concealment may be

       merely negligent and arises when the physician does not disclose to the patient

       certain material information.” Id. “‘The physician’s failure to disclose that

       which he knows, or in the exercise of reasonable care should have known,

       constitutes constructive fraud.’” Id. (quoting, inter alia, Cyrus v. Nero, 546

       N.E.2d 328, 330 (Ind. Ct. App. 1989)). Where the concealment is passive, the

       statute of limitations begins to run when the patient-physician relationship ends,

       or until the discovery of the malpractice, whichever is earlier. Schopp, 780

       N.E.2d at 1210.


[18]   “Active concealment involves affirmative acts of concealment intended to

       mislead or hinder the plaintiff from obtaining information concerning the

       malpractice.” Id. “[T]here must be some affirmative act which amounts to

       more than passive silence.” French v. Hickman Moving & Storage, 400 N.E.2d

       1384, 1389 (Ind. Ct. App. 1980). The plaintiff must establish that the

       defendant’s concealment of material information somehow prevented her from

       inquiring into or investigating the plaintiff’s (or decedent’s) condition, thus

       preventing her from discovering a potential cause of action. Garneau v. Bush,

       838 N.E.2d 1134, 1143 (Ind. Ct. App. 2005), trans. denied (2006). When active

       concealment is involved, the statute of limitations does not expire until a




       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 15 of 35
       reasonable time after the plaintiff discovers or with reasonable diligence could

       have discovered the existence of the malpractice. Schopp, 780 N.E.2d at 1210.


[19]   Theresa concedes that a constructive concealment claim would be fruitless

       because Biedron’s relationship with AP1 ended at his death in 2005. She

       characterizes AP1’s advice to Biedron as active concealment, claiming that


               [AP1] did not simply engage in passive silence by failing to
               inform [Biedron] that he needed a CRT-D. Rather, [AP1]
               affirmatively misrepresented the “need” for a CRT-P and, in so
               doing, failed to alert [Biedron] that a CRT-P is only intended for
               patients who do not desire the life-saving benefits of a CRT-D.
               Having no idea that he received the wrong device as a result of
               [AP1’s] indication that he was receiving the “needed” device,
               [AP1] not only led [Biedron] to his death but cloaked the
               malpractice surrounding the impropriety of his failure to refer
               [Biedron] to an electrophysiologist with privileges to implant a
               CRT-D.


       Biedron Appellant’s Br. at 15 (citing Biedron Appellant’s App. Vol. 2 at 142).


[20]   A critical flaw in Theresa’s argument is that Dr. Nasir had no personal

       knowledge of what AP1 actually told Biedron about the CRT-P. Indiana Trial

       Rule 56(E) provides that affidavits designated in support of or opposition to

       summary judgment “shall be made on personal knowledge, shall set forth such

       facts as would be admissible in evidence, and shall show affirmatively that the

       affiant is competent to testify to the matters stated therein.” “The requirements

       of Trial Rule 56(E) are mandatory and a court considering a motion for

       summary judgment should disregard inadmissible information contained in


       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 16 of 35
       supporting or opposing affidavits.” Morris v. Crain, 71 N.E.3d 871, 877 (Ind. Ct.

       App. 2017). Accordingly, the trial court should have disregarded Dr. Nasir’s

       statements regarding matters of which he had no personal knowledge, including

       AP1’s intent and state of mind, what Biedron knew, and what AP1 actually

       told Biedron about the CRT-P.7 See Weaver v. State, 643 N.E.2d 342, 345 (Ind.

       1994) (noting that witnesses may not testify to opinions concerning intent under

       Ind. Evidence Rule 704(b), which is consistent with prior common law rule

       “that a witness may not give an opinion as to the state of mind or the thought

       processes of another person.”); Houser v. Kaufman, 972 N.E.2d 927, 936 (Ind.

       Ct. App. 2012) (declining to assume for purposes of summary judgment that

       content of physician’s notes was repeated verbatim to patient), trans. denied.8


[21]   Theresa argues that AP1’s state of mind may be established by inference,

       claiming that his lack of hospital privileges to implant a CRT-D suggests that he

       “had a financial motive to perform the improper implant of a CRT-P rather

       than refer [Biedron] to a physician with CRT-D privileges.” Biedron

       Appellant’s Br. at 17. But absent any designated evidence regarding what AP1

       actually told Biedron about the CRT-P, Theresa can only speculate that AP1



       7
         The physician and medical practice defendants in all three cases note that the patients signed consent forms
       prior to their implant surgeries, and that if a consent is properly signed and witnessed and properly explained
       to the patient before a procedure is undertaken, “a rebuttable presumption is created that the consent is an
       informed consent.” Ind. Code § 34-18-12-2. The plaintiffs point out that “causes of action predicated upon a
       lack of informed consent are distinct from actions arising from an unnecessary surgery.” Sitko/Orr
       Appellees’ Br. at 33-34.
       8
        In her reply brief, Theresa asserts that vestiges of Dr. Nasir’s affidavit survived the Biedron Defendants’
       motion to strike. Because she did not challenge the trial court’s ruling in her initial brief, she has waived any
       argument in this regard.

       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018                            Page 17 of 35
       affirmatively misled Biedron about his need for the device. “[M]ere speculation

       cannot create questions of fact.” Beatty, 896 N.E.2d at 20.


[22]   And even assuming that AP1 affirmatively misled Biedron about his need for a

       CRT-P, Theresa has failed to establish that this prevented her from investigating

       Biedron’s condition. As AH points out, Theresa could have requested

       Biedron’s medical records after his death in 2005, and they would have revealed

       the same information that she now relies on to assert that AP1 committed

       malpractice by implanting a CRT-P instead of a CRT-D. The only “concealed”

       evidence that came to light after Biedron’s death was AP1’s alleged financial

       motive to commit malpractice, which is irrelevant to our analysis because the

       concealment did not prevent Theresa from investigating Biedron’s condition.

       Because Theresa has failed to establish an issue of fact material to her

       fraudulent concealment theory, we affirm the trial court’s entry of summary

       judgment for the Biedron Defendants.


                             Facts and Procedural History (Sitko)
[23]   Sullivan was born in 1932. In 2008, she received unspecified care and

       treatment from AP1. On February 13, 2008, AP2 inserted a cardiac stent in

       one of Sullivan’s arteries. On February 19, 2008, AP2 recommended that

       Sullivan receive a CRT-D. The next day, Sullivan died during the CRT-D

       implantation surgery, which AP2 performed at AH. Her death certificate lists

       her cause of death as congestive heart failure due to or as a cause of severe

       coronary artery disease. Sitko/Orr Appellants’ App. Vol. 2 at 102.


       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 18 of 35
[24]   Over seven years later, on May 15, 2015, Sitko, as the personal representative of

       Sullivan’s estate, filed a proposed complaint for medical malpractice against the

       Sitko Defendants with the IDOI. The proposed complaint asserted general

       claims of medical malpractice against AP1 and AP2, a claim against AMP

       based on the negligence of AP1 and AP2, and a claim against AH for the

       negligent credentialing, privileging, and policing of AP1 and AP2. It also

       asserted claims for wrongful death or, in the alternative, claims for personal

       injury that allegedly survived Sullivan’s death pursuant to Indiana Code Section

       34-9-3-1.9


[25]   In 2016, the Sitko Defendants filed a petition for preliminary determination and

       a motion for summary judgment, asserting that Sitko’s claims were untimely

       filed. In response, Sitko argued that the statutory limitation period should be

       tolled by the doctrine of fraudulent concealment, and she designated an

       affidavit from Dr. Nasir that reads in pertinent part as follows:


                2. I have reviewed the medical records relative to AP2’s
                treatment of the patient, Dorothy Sullivan.

                3. AP2 fell below the applicable standard of care for the
                following reasons:

                a) AP2 recommended and implanted a defibrillator just several



       9
        Indiana Code Section 34-9-3-1(a) provides that if an individual who is entitled to a cause of action dies
       (with certain exceptions not relevant here), the cause of action survives and may be brought by the deceased
       party’s representative. “The action is considered a continued action and accrues to the representatives or
       successors at the time the action would have accrued to the deceased if the deceased had survived.” Ind.
       Code § 34-9-3-1(b). The limitation period for a personal injury action is two years. Ind. Code § 34-11-2-4(a).

       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018                         Page 19 of 35
        days after performing a stent on the proximal Left Anterior
        Descending Artery (LAD). The performance of an Implantable
        Cardioverter Defibrillator (ICD) for primary prevention of
        Sudden Cardiac Death within 90 days of a revascularization
        procedure is outside the standard of care and exhibits either a
        willful disregard of established Medical Practice and Standards or
        it exhibits a lack of appropriate intellectual fund of knowledge,
        either of which resulted in a procedure which was inappropriate,
        not indicated and below the standard of care and which
        proximately led to her death during that implantation.

        b) Notwithstanding the improper recommendation and
        implantation of an ICD, AP2 further aggravated his substandard
        care by improperly recommending a Cardiac Resynchronization
        Therapy Defibrillator (CRT-D) device on 02/19/08 when the
        patient had a narrow QRS duration via EKG findings on
        02/07/08 (QRS 97 msec) and 02/10/08 (QRS 92 msec). The
        rules, recommendations, guidelines and established medical
        practice of placing a CRT-D require a QRS duration equal to or
        greater than 120 milliseconds (msec) and disallows the
        implantation of a CRT-D device absent this criteria.
        Furthermore the patient must also qualify for an ICD. Mrs.
        Sullivan as previously noted did not qualify for an ICD because
        of her recent revascularization procedure on her LAD and her
        Myocardial Infarction which was much more likely than not less
        than 40 days old (see section c. below) and she certainly did not
        require a CRT[-]D (which differs from a regular ICD by
        placement of the LV lead, which in this case proximately led to
        her death from probably cardiac tamponade. (see below)

        c) Moreover in his signed Indications for ICD Therapy sheet (an
        administrative form provided by AH to justify device
        implantation) in the Hospital record AP2 affirmed and signed his
        name to that document that the patient had LV (left ventricular)
        dysfunction due to a prior MI (myocardial infarction), AND that
        at least forty (40) days had passed after the Ml and the patient’s
        LVEF (left ventricular ejection fraction) was less than or equal to

Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 20 of 35
        40%. The evidence in the medical record reveals a gross and
        negligent error in his judgment that the MI was more than 40
        days old.

        Mrs. Sullivan presented with a 1 week history of symptoms and
        had EKG evidence of recent transmural myocardial infarction
        (MI). There was additional substantial objective evidence that
        her MI was recent based on the Electrocardiograms 2/07/2008
        and subsequent evolutionary changes on later EKGs and the
        Echocardiogram performed on 2/10/2008 showing normal Left
        Ventricular (LV) size (aged MI more than 40 days old due to
        LAD disease generally would have Left Ventricular enlargement
        yet her LV was normal in size. Hence AP2 negligently failed to
        even reasonably establish the timing of the MI and further
        violated the standard of care when recommended the ICD within
        the 40 day window of exclusion. Further supporting a recent
        diagnosis of myocardial infarction was normal LV wall thickness.
        Remodeling of LV geometry and wall thickness after myocardial
        infarction occurs in the time frame remote from MI and results in
        thinning of the affected infarcted muscle in addition to expansion
        of the LV as stated herein.

        d) Hence AP2’s recommendation for an ICD fell below the
        standard of care on not one but two necessary criteria, i)
        implantation within 90 clays of revascularization ii) implantation
        within 40 days of acute MI (AMI).

        e) There is no indication that [sic] in the medical records that
        AP2 disclosed to the patient or subsequently her estate that the
        device he recommended and implanted on 02/20/08 was not
        necessary or indicated in light of the aforementioned required
        criteria for implantation of an ICD and in light of her narrow
        QRS and in light of the fact the ACC/AHA Implant Guidelines
        indicate that either an ICD or CRT (cardiac resynchronization
        therapy) device should not be implanted within ninety (90) days
        of revascularization or within 40 days of an acute MI.


Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 21 of 35
        4. AP2 improperly represented to the patient that she needed a
        CRT-D implant when she did not meet indications for such a
        device, either an ICD or a CRT-ICD as herein stated because she
        did not qualify for multiple reasons (see above).

        5. AP2 further fell below the standard of care during the
        implantation of the unnecessary ICD. Mrs. Sullivan had no
        pericardial effusion on February 10, 2008. During the
        implantation of the inappropriate ICD, more specifically during
        placement of the LV lead Mrs. Sullivan becomes progressively
        bradycardic and arrests. A stat Echo was done showing an
        important pericardial effusion. AP2 failed to competently
        address this life threatening complication and falls below the
        standard of care in 2 respects:

        i) his inability to recognize that he much more likely than not
        caused a tear in the cardiac venous anatomy leading to the
        immediate accumulation of the effusion and the resultant cardiac
        tamponade.

        ii) his inability to perform a competent pericardiocentesis to
        relieve the blood in the pericardial sac and by doing so relieve
        compressive pressure on the heart to permit adequate filling and
        pumping of blood and restore spontaneous circulation further
        show his lack of proper education and training in the
        performance and management of complications of ICD/CRT
        [-]D implantation.

        6. The average person laying [sic] ill in the hospital has an
        expectation that their doctor will recommend appropriate options
        for diagnosis and treatment. The average person would not
        suspect that their doctor would recommend, nor the hospital
        permit inappropriate and unnecessary surgeries. A lay person
        would not know that an ICD was unnecessary for the reasons
        stated above nor that the patient’s EKG QRS duration was
        essentially normal and that the totality of these conditions did not
        qualify her for either an ICD or a CRT-D. A lay person would

Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 22 of 35
                  not and could not know that the ACC/AHA Implant Guidelines
                  nor Medicare Payment guideline did not permit implantation of
                  an ICD for primary prevention in this patient or any patient until
                  forty days post-MI and/or until ninety days post-
                  revascularization (i.e., cardiac vessel stenting). Frankly most
                  people expect their doctors to be competent and honest and have
                  the patient’s best interest at heart therefore there would be no
                  expectation that either Mrs. Sullivan or her estate should have
                  known that AP2 breeched [sic] the standards of care in his
                  negligent recommendations and that AH negligently credentialed
                  AP2.


       Sitko/Orr Appellants’ App. Vol. 3 at 22-28.10


[26]   The Sitko Defendants filed a motion to strike Dr. Nasir’s affidavit based on his

       lack of personal knowledge as to what AP2 told Sitko, his statements regarding

       AP2’s state of mind, his conflation of negligence and fraud, and his speculation

       regarding what a lay person would know, among other things. After a hearing,

       the trial court issued an order summarily denying the Sitko Defendants’ motion

       for summary judgment and motion to strike and certified the order for

       interlocutory appeal. Sitko concedes that her submission of Dr. Nasir’s

       affidavit opining that Sullivan’s death was caused by AP2’s allegedly

       unnecessary surgery prevents her from pursuing a survival action, and thus she

       is pursuing only her wrongful death claims.




       10
            The affidavit contains additional assertions regarding AH that are irrelevant to this appeal.

       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018                             Page 23 of 35
                                 Discussion and Decision (Sitko)

       Section 2 – The trial court abused its discretion in denying the
         Sitko Defendants’ motion to strike Dr. Nasir’s affidavit.
[27]   We first address the Sitko Defendants’ argument that the trial court erred in

       denying their motion to strike Dr. Nasir’s affidavit. A trial court has broad

       discretion in ruling on the admissibility of evidence, which extends to rulings on

       motions to strike affidavits on the grounds that they do not comply with the

       summary judgment rules. Morris, 71 N.E.3d at 877. A trial court abuses its

       discretion when its decision is clearly against the logic and effect of the facts

       and circumstances before it. Id.


[28]   The Sitko Defendants argue, and we agree, that the affidavit contains

       inadmissible statements regarding matters outside Dr. Nasir’s personal

       knowledge, such as the conversations between AP2 and Sullivan, as well as

       inadmissible statements regarding their intent, state of mind, and knowledge.

       Ind. Trial Rule 56(E); Ind. Evidence Rule 704(b). Therefore, we conclude that

       the trial court abused its discretion in denying the Sitko Defendants’ motion to

       strike those portions of Dr. Nasir’s affidavit.


[29]   The Sitko Defendants also take issue with Dr. Nasir’s assertions of negligence,

       claiming that this issue is reserved for the medical review panel and irrelevant to

       fraudulent concealment. Sitko argues that to establish fraudulent concealment,

       she must demonstrate that AP2’s “representations were inaccurate, and expert

       medical testimony is necessary to establish such misrepresentations.”


       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 24 of 35
       Sitko/Orr Appellees’ Br. at 51. But Dr. Nasir’s assertions of negligence based

       on AP2’s alleged errors in judgment or lack of skill/training/knowledge are not

       affirmative acts of concealment that prevented Sitko from investigating

       Sullivan’s condition. Accordingly, we conclude that the trial court abused its

       discretion in failing to strike those portions of the affidavit as well.


       Section 3 – The trial court erred in denying summary judgment
                                    to AP1.
[30]   The Sitko Defendants also assert that Sitko designated no evidence to support a

       tolling claim as to AP1, and therefore API is entitled to summary judgment.

       Sitko concedes her failure to designate such evidence but contends that the

       Sitko Defendants failed to alert her to their bases for seeking summary

       judgment as to AP1 in their initial summary judgment memorandum; she cites

       to the Orr Defendants’ memorandum to support this contention, however. See

       Sitko/Orr Appellees’ Br. at 53 (citing Sitko/Orr Appellants’ App. Vol. 3 at 109-

       29). The Sitko Defendants’ memorandum notes that more than seven years

       had passed from the date of their last possible act of alleged malpractice and

       argues that there was no legal basis for tolling the statutory limitation period.

       Sitko/Orr Appellants’ App. Vol. 2 at 46-47. This was sufficient to alert Sitko to

       the Sitko Defendants’ bases for seeking summary judgment as to AP1, and

       Sitko designated no evidence to defeat the summary judgment motion.

       Therefore, we reverse the denial of summary judgment as to AP1.




       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 25 of 35
       Section 4 – The trial court erred in denying summary judgment
                    to the remaining Sitko Defendants.
[31]   The remaining Sitko Defendants contend that they are also entitled to summary

       judgment, claiming that Sitko designated no admissible evidence that AP2’s

       representation to Sullivan about her need for a CRT-D was an affirmative

       misrepresentation, as opposed to an act of negligence. We agree. Dr. Nasir

       had no personal knowledge about what AP2 actually told Sullivan, and he had

       no personal knowledge regarding AP2’s intent or state of mind, i.e., whether

       AP2 intended to mislead Sullivan about her need for a CRT-D or was merely

       negligent. Sitko notes that her counsel argued at the summary judgment

       hearing that Sullivan would not have “ended up on the operating table” if AP2

       had not lied to her about the necessity of the surgery. Sitko/Orr Appellees’ Br.

       at 39 (quoting Sitko/Orr Tr. Vol. 2 at 24). Counsel’s argument is pure

       speculation, and it is well settled that “the ‘unsworn commentary of an

       attorney’ is not competent evidence for a summary judgment motion and

       should not be considered.” Turner v. Bd. of Aviation Comm’rs, 743 N.E.2d 1153,

       1164 (Ind. Ct. App. 2001) (quoting Freson v. Combs, 433 N.E.2d 55, 59 (Ind. Ct.

       App. 1982)), trans. denied. Sitko cites several cases stating that fraud may be

       inferred from circumstantial evidence, but she cites no authority for the

       proposition that active fraudulent concealment may be inferred from merely

       negligent conduct. Cf. Hughes v. Glaese, 659 N.E.2d 516, 521 (Ind. 1995) (“[B]y

       distinguishing the two branches of fraudulent concealment on the basis of

       whether the physician’s concealment was negligent or purposeful, courts can

       make more appropriate and just determinations as to when defendant
       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 26 of 35
       physicians should be prevented from asserting the limitations defense.”). We

       do not hold that such an inference could never be drawn, only that Sitko has

       failed to designate admissible evidence to support that inference in this case.


[32]   And even assuming that AP2 affirmatively misled Sullivan about her need for a

       CRT-D, Sitko has failed to establish that this prevented her from investigating

       Sullivan’s condition. Sitko could have requested Sullivan’s medical records

       after her death in 2008, and they would have revealed the same information

       that she now relies on to assert that AP2 committed malpractice. In sum, Sitko

       has failed to establish an issue of fact material to her fraudulent concealment

       theory. She makes no separate arguments regarding AMP and AH, thereby

       implicitly conceding that their liability is purely derivative of AP2’s liability.

       Consequently, we reverse the trial court’s denial of the Sitko Defendants’

       summary judgment motion as to AP2, AMP, and AH.


                               Facts and Procedural History (Orr)
[33]   Poteet was born in 1936. AP began treating Poteet in 2002 and performed

       several medical procedures, including the implantation of a carotid stent in

       October 2005, the implantation of a CRT-D in January 2006, the performance

       of a left heart catherization coronary angiogram in March 2006, and the

       performance of a transesophageal echocardiogram in September 2006. On

       April 24, 2007, Poteet died. Her death certificate lists the cause of death as end

       stage renal disease.




       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 27 of 35
[34]   Over seven years later, on October 27, 2014, Orr, as personal representative of

       Poteet’s estate, filed a proposed complaint for medical malpractice asserting

       claims against the Orr Defendants that are similar to those asserted in Sitko’s

       proposed complaint. Orr asserted claims for wrongful death or, in the

       alternative, claims for personal injury that allegedly survived Poteet’s death

       pursuant to Indiana Code Section 34-9-3-1.


[35]   In 2016, the Orr Defendants filed a petition for preliminary determination and a

       motion for summary judgment, asserting that Orr’s claims were untimely filed.

       In response, Orr designated an affidavit from Dr. Nasir that reads in pertinent

       part as follows:


               2. I have reviewed the Submissions of the parties and [sic] in this
               case and the medical records relative to AP’s treatment of the
               patient, Patricia Poteet.

               3. AP fell below the applicable standard of care for the following
               reasons:

               a) Improperly evaluating and recommending a CRT-D device on
               01/19/06 when the patient had a narrow QRS via EKG findings
               on 08/23/05 (QRS 89); 10/21/05 (QRS 98); 10/23/05 (QRS
               87); 10/24/05 (QRS 97); and 01/19/06, hours before the implant
               (QRS 83). The standard of care does not permit the implantation
               of a CRT-D device unless the QRS is equal to or greater than 120
               ms;

               b) Misstating in his Operative Note that the patient’s QRS was
               130 apparently attempting to justify this unnecessary implant;

               c) Subjecting the patient to unnecessary diagnostic procedures
               and misstating indications for those procedures or otherwise
       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 28 of 35
               repeating tests that were completed shortly before the tests.

               4. AP improperly represented to the patient that she needed a
               CRT-D implant when she did not meet the indications for such a
               device, as her QRS was essentially normal.

               5. A lay person would not know that this device was
               unnecessary or that AP misstated the patient’s QRS in the
               Procedure Note relative to the CRT-D implantation.

               6. After reviewing documents relative to the negligent
               credentialing claim, AH concealed from the public (and from this
               patient) that AP was not qualified to evaluate, treat, implant
               CRT-D devices, or follow the patient after the implantation. AH
               also concealed from the public and this patient that AP was
               improperly granted privileges for ICD’s and CRT-D’s. A CRT-D
               device was implanted in this patient.


       Sitko/Orr Appellants’ App. Vol. 8 at 40-41. Orr argued that the statutory

       limitation period for her wrongful death claims should be tolled by the doctrine

       of fraudulent concealment or, in the alternative, that the statutory limitation

       period for her medical malpractice claims was unconstitutional as applied.


[36]   The Orr Defendants filed a reply to Orr’s response and a motion to strike Dr.

       Nasir’s affidavit, which is substantially similar to the foregoing motions to

       strike. Orr filed a motion to strike portions of the Orr Defendants’ reply on the

       basis that “multiple new issues” were raised therein. Id. at 76. Without holding

       a hearing, the trial court issued an order denying the Orr Defendants’ motion to

       strike on the basis that Dr. Nasir’s affidavit “demonstrated that he was

       competent to testify on the matters contained therein, that the facts he swore to


       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 29 of 35
       were admissible, relevant, and were necessary to understand the nature of the

       malpractice alleged.” Orr Appealed Order at 2. The trial court also denied the

       Orr Defendants’ summary judgment motion on the basis that Dr. Nasir’s

       affidavit “invoked enough doubt … to properly preserve the issue of equitable

       tolling as appropriate to the present facts and, in doing so, also precluded

       summary judgment on the issue of a statute of limitations violation.” Id. at 4.

       Finally, the trial court granted Orr’s motion to strike those portions of the Orr

       Defendants’ reply that “injected issues argued for the first time, thus preventing

       those issues from being countered within the adversary process.” Id. at 2. The

       trial court certified the order for interlocutory appeal.


                                  Discussion and Decision (Orr)

        Section 5 – The trial court abused its discretion in striking the
                        Orr Defendants’ reply briefs.
[37]   In Orr’s motion to strike, she asserted that the Orr Defendants improperly

       argued for the first time in their summary judgment reply brief that granting

       summary judgment for AP would require granting summary judgment for

       AMP because no independent claims of malpractice had been made against

       AMP. On appeal, the Orr Defendants contend that “[t]his is simply not true”

       because they “demonstrated in their original [summary judgment] motion and

       brief that Orr’s claim against AMP included allegations of respondeat superior for

       the treatment rendered by [AP] and that the claims against both [AP] and

       [AMP] would be time-barred.” Sitko/Orr AP1/AP2/AMP Appellants’ Br. at

       42. The record indicates that the Orr Defendants excerpted Orr’s allegations

       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 30 of 35
       against AP and AMP in her proposed complaint but did not make the specific

       argument later made in their reply brief. It is clear from the face of Orr’s

       complaint, however, that she did not assert a separate basis of liability for

       AMP.


[38]   Orr also asserted that the Orr Defendants improperly argued for the first time in

       their reply brief that AP’s “fraud amounted to no more than passive silence.”

       Sitko/Orr Appellants’ App. Vol. 8 at 77. But this argument was a rejoinder to

       Orr’s argument in her response brief that AP “not only misrepresented the need

       for a CRT-D implant but also affirmatively misrepresented Poteet’s QRS

       duration.” Id. at 31. Contrary to Orr’s assertion in her motion to strike, the Orr

       Defendants were not required to raise the elements of fraud in their summary

       judgment motion; their only burden was to establish that Orr’s claims were

       untimely. Myers, 51 N.E.3d at 1276.11 Thus, the Orr Defendants’ argument in

       their reply brief was a proper response to Orr’s argument regarding fraudulent

       concealment. Based on the foregoing, we conclude that the trial court abused

       its discretion in striking the Orr Defendants’ reply briefs.


        Section 6 – The trial court abused its discretion in denying the
           Orr Defendants’ motion to strike Dr. Nasir’s affidavit.
[39]   The Orr Defendants’ arguments regarding the denial of their motion to strike

       Dr. Nasir’s affidavit are similar to (and indeed are largely lumped in with) those



       11
        We acknowledge that Orr mentioned fraudulent concealment in her proposed complaint and that the Orr
       Defendants followed suit in their initial summary judgment brief, but neither was obligated to do so.

       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018                  Page 31 of 35
       of the Sitko Defendants. One wrinkle in this case is Dr. Nasir’s observation

       that Poteet’s QRS reading in her EKG is different from the QRS reading in

       AP’s operative notes, which Orr asserts is indicative of an intent to mislead.

       AH points out, however, that Poteet’s medical records “may establish what

       [AP] wrote down about her QRS duration,” but they do “not establish what he

       communicated to her about her QRS duration.” Sitko/Orr AH Appellant’s Br.

       at 31. Nor do they establish what AP actually told Poteet about her need for a

       CRT-D. Therefore, we conclude that the trial court abused its discretion in

       denying the Orr Defendants’ motion to strike Dr. Nasir’s statements regarding

       matters outside his personal knowledge.


       Section 7 – The trial court erred in denying summary judgment
         on Orr’s wrongful death claims on the issue of fraudulent
                                concealment.
[40]   The Orr Defendants’ arguments regarding fraudulent concealment are also

       similar to those of the Sitko Defendants. The operative facts of the two cases

       are sufficiently similar to compel a similar result. Orr’s proposed complaint

       suggests that AP had a concealed financial motive to mislead Poteet about the

       need for a CRT-D; as in the Biedron case, the concealment of AP’s motive to

       mislead is irrelevant to our analysis because it did not prevent Orr from

       investigating Poteet’s condition. Consequently, we reverse the denial of the Orr

       Defendants’ summary judgment motion on the issue of fraudulent

       concealment, which disposes of Orr’s wrongful death claims.




       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 32 of 35
       Section 8 – The trial court erred in denying summary judgment
                    on Orr’s medical malpractice claims.
[41]   Finally, we must also determine if a genuine issue of material fact exists

       regarding whether the two year-limitation period of Indiana Code Section 34-

       18-7-1 is unconstitutional as applied to Orr’s medical malpractice claims.

       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). “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), the 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

       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018        Page 33 of 35
               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.


[42]   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,

       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 also 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.


[43]   Here, the Orr Defendants assert that Poteet was aware of her cardiac disease

       and AP’s treatment. They observe that Orr alleged in her amended proposed

       complaint that Poteet “suffered severe and permanent physical injuries and

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

       trauma” as a result of the Orr Defendants’ alleged malpractice. Sitko/Orr
       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018     Page 34 of 35
       Appellants’ App. Vol. 4 at 33. They also cite to Poteet’s medical records, which

       contained all the information that Dr. Nasir needed to determine that the CRT-

       D was unnecessary, and documented her numerous health problems and

       hospital visits that occurred both before and after the CRT-D implantation. AH

       sums up their argument as follows: “Poteet knew she had a heart condition.

       She knew she had received a [CRT-D] for that condition. And she knew her

       condition failed to improve. These were all facts that, in the exercise of

       reasonable diligence, should have led to the discovery of the malpractice and

       the resulting injury.” Sitko/Orr AH Appellant’s Reply Br. at 11 (citations,

       quotation marks, and alterations omitted).


[44]   We agree. Even if Poteet and Orr had no reason to suspect malpractice,

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

       years before the proposed malpractice complaint was filed in 2014; we need not

       pinpoint the trigger date, but it was certainly no later than the date of her death

       in 2007. Consequently, we reverse the denial of the Orr Defendants’ summary

       judgment motion on Poteet’s medical malpractice claims.


[45]   In sum, we rule in favor of the defendants in all respects. Accordingly, we

       affirm in part and reverse in part.


[46]   Affirmed in part and reversed in part.


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018   Page 35 of 35
