MEMORANDUM DECISION                                           May 26 2015, 8:34 am

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEES
Jason T. Myers                                            David G. Field
Plainfield, Indiana                                       Justin C. Wiler
                                                          Schultz & Pogue, LLP
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jason T. Myers,                                           May 26, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          79A05-1411-CT-525
        v.                                                Appeal from the Tippecanoe Circuit
                                                          Court

Anonymous Medical Group                                   The Honorable Donald L. Daniel,
                                                          Judge
Anonymous Physician
                                                          Case No. 79C01-1307-CT-18
Appellees-Plaintiffs

Steve Robertson, Executive
Director/Commissioner of
Insurance, Indiana Department of
Insurance,
Interested Party.




Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 79A05-1411-CT-525 | May 26, 2015     Page 1 of 9
                                            Case Summary
[1]   Jason Myers’s father died in November 2010 following surgery. More than

      three years later, Myers filed a medical-malpractice action against the physician

      and a medical group and requested the appointment of counsel. The physician

      and the medical group sought summary judgment on the grounds that the son’s

      action was barred by the applicable statute of limitations. The trial court denied

      Myers’s request for appointment of counsel and granted summary judgment in

      favor of the physician and the medical group. Because this action was time-

      barred by the applicable statute of limitations, we affirm the trial court.



                             Facts and Procedural History
[2]   In October 2010, Dale Myers was admitted to Anonymous Hospital in

      Lafayette, Indiana, for surgical procedures necessitated by a persistent perianal

      fistula.1 Dale was well-known to physicians because he had already had

      approximately twenty surgical procedures for his chronic perianal fistulas.

      Anonymous Physician was the assistant surgeon on the case. Dale — whose

      recovery was complicated by a fall, additional surgical procedures, and internal




      1
        An anal fistula is “a small channel that develops between the end of the bowel, known as the anal canal,
      and the skin near the anus. The end of the fistula can appear as a hole in the skin around the anus.”
      http://www.nhs.uk/conditions/Anal-fistula/Pages/Introduction.aspx (last visited May 6, 2015).




      Court of Appeals of Indiana | Memorandum Decision 79A05-1411-CT-525 | May 26, 2015                Page 2 of 9
      bleeding — died on November 4, 2010, which was also the last day the

      Anonymous Physician treated him.


[3]   Jason Myers is Dale’s son. On November 7, 2010, Myers, who was

      incarcerated at the Correctional Industrial Complex in Plainfield, was told by

      the prison chaplain that his father had died. Myers was allowed to telephone

      his brother, who told Myers that their father had died at Anonymous Hospital

      after his spleen ruptured and he bled to death following colon surgery. Myers,

      seeking to learn more about his father’s death, attempted to obtain a death

      certificate. However, Indiana Department of Correction policy prohibited him

      from obtaining one.


[4]   In December 2011, one year after his father’s death, Myers contacted

      Anonymous Hospital in an attempt to obtain his father’s medical records. The

      Hospital advised Myers that his request was not on the proper form and sent

      him the correct one, which requested the last four digits of his father’s social-

      security number. Myers, however, did not have this number so he did not

      pursue his request for the medical records.


[5]   In September 2012, while Myers was in court on an unrelated matter, he was

      given his father’s death certificate. Myers was able to view his father’s causes of

      death, which were listed as: 1. cardiac arrest secondary to hypotension2; 2.




      2
        Hypotension is abnormally low blood pressure. http://www.nhlbi.nih.gov/health/health-
      topics/topics/hyp (last visited May 6, 2015).

      Court of Appeals of Indiana | Memorandum Decision 79A05-1411-CT-525 | May 26, 2015        Page 3 of 9
      hypotension and ischemia3 due to internal bleeding; and 3. internal bleeding at

      spleen. Appellant’s App. p. 117. Myers was also able to view his father’s

      social-security number and again attempted to obtain his father’s medical

      records from Anonymous Hospital. When Myers learned he would have to pay

      for the records, Myers did not pursue his request.


[6]   One month later, on October 31, 2012, Myers attempted to file his first

      proposed complaint with the Indiana Department of Insurance. The complaint

      named Anonymous Hospital as a defendant but did not name Anonymous

      Physician or Anonymous Medical Group. Myers did not include the filing fee

      with his proposed complaint and was subsequently granted a fee waiver. His

      complaint was marked as filed by the Department of Insurance on February 6,

      2013.


[7]   In March 2013, Myers filed an amended proposed complaint against

      Anonymous Hospital. The complaint did not name either Anonymous

      Physician or Anonymous Medical Group as defendants. On September 4,

      2013, Myers requested the appointment of counsel, which the trial court denied.

      On October 4, Myers made a formal request for production of medical

      documents, which he received on February 14, 2014.




      3
       Ischemia is the medical term for what happens when the heart muscle doesn't get enough oxygen.
      http://www.webmd.com/a-to-z-guides/ischemia-topic-overview (last visited May 6, 2015).

      Court of Appeals of Indiana | Memorandum Decision 79A05-1411-CT-525 | May 26, 2015            Page 4 of 9
[8]    Myers filed a second amended proposed complaint wherein he named

       Anonymous Physician as a defendant on February 21, 2014. Six months later,

       Anonymous Physician filed a petition for a preliminary determination of law

       and summary judgment based on the statute of limitations. Specifically,

       Anonymous Physician argued that Myers had failed to file his proposed

       complaint within two years of November 4, 2010, the patient’s date of death.

       On September 11, 2014, Myers filed both a third amended proposed complaint

       adding Anonymous Medical Group as a defendant as well as a response to

       Anonymous Physician’s summary-judgment motion. In Anonymous

       Physician’s reply to Myers’s response, Anonymous Physician stated that the

       arguments contained in his summary-judgment motion and reply applied

       equally to Anonymous Medical Group.


[9]    On October 8, 2014, the trial court issued an order granting summary judgment

       in favor of Anonymous Physician and Anonymous Medical Group.

       Specifically, the trial court concluded that Myers’s claims were barred by the

       statute of limitations.


[10]   Myers, pro se, now appeals.



                                 Discussion and Decision
[11]   At the outset we note that Myers is proceeding pro se. Such litigants are held to

       the same standard as trained counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind.

       Ct. App. 2004), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-CT-525 | May 26, 2015   Page 5 of 9
                                  I. Statute of Limitations
[12]   Myers first argues that the trial court erred in concluding that his claim was

       barred by the statute of limitations and granting summary judgment in favor of

       Anonymous Physician and Anonymous Medical Group. When reviewing a

       grant of summary judgment, we apply the same standard as the trial court.

       Anonymous Physician v. Wininger, 998 N.E.2d 749, 751 (Ind. Ct. App. 2013).

       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. Id. All facts and reasonable inferences therefrom

       are construed in a light most favorable to the nonmovant. Id.


[13]   Statutes of limitations are favored in Indiana because they afford security

       against stale claims and promote the peace and welfare of society. Runkle v.

       Runkle, 916 N.E.2d 184, 191 (Ind. Ct. App. 2009), trans. denied. They are

       enacted on the presumption that someone with a well-founded claim will not

       delay in enforcing it. Id. Further, the statute-of-limitations defense is

       particularly well suited as a basis for summary judgment. Id. When a movant

       asserts the statute of limitations as an affirmative defense and makes a prima

       facie showing that the action was untimely commenced, the nonmovant has the

       burden of establishing an issue of fact material to the theory that avoids the

       affirmative defense. Id. at 192.


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

       section 34-18-7-1(b), which provides that a claim against a health-care


       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-CT-525 | May 26, 2015   Page 6 of 9
       professional based upon health care that was provided or should have been

       provided, must be filed within two years of the alleged act, omission, or neglect.

       This is an occurrence-based statute of limitations, which means that an action

       for medical malpractice generally must be filed within two years from the date

       the alleged negligent act occurred rather from the date it was discovered. Houser

       v. Kaufman, 972 N.E.2d 927, 933 (Ind. Ct. App. 2012), trans. denied. However,

       if the claimant does not discover the alleged malpractice and resulting injury,

       and does not possess the information that would lead a reasonably diligent

       person to such discovery during the two-year period, the occurrence-based

       limitation period is unconstitutional as applied. Garneau v. Bush, 838 N.E.2d

       1134, 1141 (Ind. Ct. App. 2005), trans. denied. In such cases, it must be

       determined when the claimant possessed enough information that, in the

       exercise of reasonable diligence, should have led to the discovery of the alleged

       malpractice and resulting injury. Id. Reasonable diligence requires a claimant

       “to inquire into the possibility of a claim within the remaining limitations

       period, and to institute a claim within that period or forego it.” Herron v.

       Anigbo, 897 N.E.2d 444, 459 (Ind. 2008), reh’g denied.


[14]   Here, the last alleged negligent act occurred on November 4, 2010, the date the

       patient died. However, Myers did not file his complaint against Anonymous

       Physician until February 21, 2014, or against Anonymous Medical Group until

       September 11, 2014. Both dates are clearly outside the statute-of-limitations

       period. Myers, however, argues that the “earliest [he] could’ve discovered facts

       to learn of the malpractice and resulting injury would’ve been after receipt of


       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-CT-525 | May 26, 2015   Page 7 of 9
       the September 28, 2012, delivered death certificate, which [his] February 21,

       2014, Second Amended Complaint was well within two years of.” Appellant’s

       Br. p. 9.


[15]   Although Myers claims that he did not discover the alleged malpractice until he

       received his father’s death certificate in September 2012, our review of the

       evidence reveals that on November 10, 2010, three days after their father’s

       death, Myers’s brother gave him the very information contained in the death

       certificate. Specifically, Myers’s brother told him that their father died at

       Anonymous Hospital after his spleen ruptured and he bled to death following

       colon surgery. Although he possessed this information that alerted him to the

       alleged malpractice and resulting injury, Myers waited thirteen months, until

       December 14, 2011, before contacting the hospital and requesting his father’s

       medical records. After the hospital told Myers that his request was not on the

       proper form and sent him the correct one, which requested the last four digits of

       his father’s social-security number, Myers delayed almost another year, until

       September 2012, before he again attempted to obtain his father’s medical

       records from Anonymous Hospital. Myers did not exercise reasonable

       diligence in pursuing his claim, and the trial court did not err in concluding that

       his claim was barred by the statute of limitations and granting summary

       judgment in favor of Anonymous Physician and Anonymous Medical Group. 4




       4
         To the extent Myers asks us to toll the statute of limitations to accommodate his incarceration, we deny his
       request. The Indiana Supreme Court addressed a similar request in Boggs v. Tri-State Radiology, Inc., 730

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-CT-525 | May 26, 2015                 Page 8 of 9
                                II. Appointment of Counsel
[16]   Myers also argues that the trial court erred in denying his request for the

       appointment of counsel. Pursuant to Indiana Code section 34-10-1-2(b)(2), if a

       person does not have sufficient means to prosecute or defend an action, the

       court “may, under exceptional circumstances, assign an attorney to defend or

       prosecute the case.” However, the court shall deny a request for an attorney if

       the person making the request is unlikely to prevail on his claim. Ind. Code §

       34-10-1-2(d).


[17]   Here, our review of the evidence reveals that the statute of limitations began to

       run in November 2010. Myers did not file his request for appointment of

       counsel until almost three years later in September 2013. By that time, the

       statute of limitations had run out on his claim, and he was therefore unlikely to

       prevail on it. Under these circumstances, the trial court did not err in denying

       Myers’s request for appointment of counsel.


[18]   Affirmed.


       Kirsch, J., and Bradford, J., concur.




       N.E.2d 692 (Ind. 2000), where Boggs argued that the statute of limitations operated as a practical bar by
       forcing medical-malpractice victims who suffer from terminal conditions to commence litigation and
       simultaneously battle for their lives. However, the Supreme Court concluded that although Boggs’s point
       had some force, nothing prevented him or his deceased wife from initiating litigation within the statutory
       period or attempting to secure a waiver of the limitations period. Id. at 696. Rather, the Supreme Court
       pointed out that the legislature chose the benefits of certainty over the burdens that may be imposed and that
       such a scheme raised no inherent bar to a remedy and left the courts open to entertain the claim. Id.
       Similarly, in this case, nothing prevented Myers from initiating litigation within the statutory period.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-CT-525 | May 26, 2015                 Page 9 of 9
