                                                                           FILED
                                                                       Nov 21 2019, 8:33 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANTS                             ATTORNEYS FOR APPELLEE
Fred Schultz                                         ANONYMOUS NURSE PRACTITIONER
Gerald Mayer                                         Robert C. Brandt
Greene & Schultz                                     Courtney David Mills
Bloomington, Indiana                                 Riley Bennett Egloff LLP
ATTORNEY FOR AMICUS CURIAE                           Indianapolis, Indiana
INDIANA TRIAL LAWYERS
ASSOCIATION
Jerry Garau
Garau Germano, P.C.
Indianapolis, Indiana



                                            IN THE

    COURT OF APPEALS OF INDIANA

Peter Strickholm, Leila                                    November 21, 2019
Strickholm (Mother and                                     Court of Appeals Case No.
Guardian), and Alfred                                      19A-MI-696
Strickholm (Father and                                     Appeal from the Marion Superior
Guardian),                                                 Court
Appellants/Petitioners,                                    The Honorable Michael D.
                                                           Keele, Judge
        v.                                                 Trial Court Cause No.
                                                           49D07-1802-MI-4253
Anonymous Nurse Practitioner,
Appellee/Respondent,

        and




Court of Appeals of Indiana | Opinion 19A-MI-696 | November 21, 2019
                                                                                               Page 1 of 12
      Anonymous Practice Group and
      Commissioner of the Indiana
      Department of Insurance,
      Third-Party Appellees/Respondents.




      Bradford, Judge.

                                          Case Summary                       1



[1]   On December 1, 2015, Anonymous Nurse Practitioner (“Anonymous NP”)

      saw Peter Strickholm at Anonymous Practice Group in Bloomington and

      prescribed Lisinopril-Hydrochlorothiazide (“Lisinopril-HCTZ”) to control his

      high blood pressure. On December 8, 2015, Peter returned to Anonymous

      Practice Group, and a licensed practical nurse (“LPN”) checked his blood

      pressure and noted it in an electronic report. On December 11, 2015, at the

      latest, Anonymous NP reviewed the report and approved it without ordering

      any further testing or any other change in Peter’s course of treatment. On

      December 15, 2015, Peter was admitted to a hospital with low sodium levels

      and suffered cardiopulmonary arrest the next day, resulting in permanent

      cognitive impairment.

[2]   On December 4, 2017, Peter and his parents/guardians, Alfred and Leila

      Strickholm (collectively, “the Strickholms”), filed a proposed medical




      1
        We held oral argument in this case on October 29, 2019, in Indianapolis. We would like to commend
      counsel for the high quality of their written submissions and oral advocacy.



      Court of Appeals of Indiana | Opinion 19A-MI-696 | November 21, 2019
                                                                                                  Page 2 of 12
      malpractice complaint with the Indiana Department of Insurance (“IDOI”).

      On February 1, 2018, Anonymous NP filed her petition for preliminary

      determination of law and summary judgment in the trial court. On March 1,

      2019, the trial court granted summary judgment in favor of Anonymous NP,

      concluding that the designated evidence established that Anonymous NP did

      not provide any medical care to Peter after December 1, 2015, thus rendering

      the Strickholms’ complaint late by three days. The Strickholms contend, inter

      alia, that the trial court abused its discretion in entering summary judgment

      because there is a genuine issue of material fact as to whether Anonymous NP

      provided medical care to Peter after December 4, 2015. Because we agree, we

      reverse and remand for trial.


                             Facts and Procedural History
[3]   On October 29, 2015, the then-fifty-seven-year-old Peter saw Anonymous NP

      for an “Establish New Patient” visit at Anonymous Practice Group to establish

      her as a primary-care provider. Appellant’s App. Vol. II p. 60. Peter’s blood

      pressure during the visit was 164/96 mmHg. On December 1, 2015, Peter

      returned to Anonymous Practice Group for a “Comprehensive Care Visit[,]”

      and his blood pressure this time was 176/94 mmHg at 8:05 a.m. and 179/100

      mmHg at 8:25 a.m. Appellant’s App. Vol. II p. 58. Anonymous NP prescribed

      Lisinopril-HCTZ to Peter to control his high blood pressure and recommended

      that he return for a blood pressure check the next week.

[4]   On December 8, 2015, Peter again returned to Anonymous Practice Group for

      a “Nurse Check” to have his blood pressure checked. Although there is some


      Court of Appeals of Indiana | Opinion 19A-MI-696 | November 21, 2019
                                                                              Page 3 of 12
      dispute as to whether Anonymous NP was present that day, the blood pressure

      check was conducted by an LPN. Peter’s blood pressure was 140/110 mmHg.

      The LPN electronically conveyed the test result to a physician in the office.

      The physician responded electronically and stated, “systolic much improved

      but diastolic still high, would recheck in 1–2 weeks and if still elevated then

      increase lisinopril[.]” Appellant’s App. Vol. II p. 214. On December 11, 2015,

      at the latest, Anonymous NP electronically reviewed and approved the LPN’s

      report of the “Nurse Check” but did not recommend any further testing or

      treatment at the time. Appellant’s App. Vol. II p. 56.

[5]   On December 15, 2015, Peter arrived at the Bloomington Hospital emergency

      room with altered mental status. Peter was diagnosed with, inter alia,

      hyponatremia, or low sodium. Peter was admitted, and the next day he

      suffered cardiopulmonary arrest in the Hospital’s intensive-care unit. Peter was

      revived, but he had suffered a hypoxic event which caused cognitive

      impairment.

[6]   On December 4, 2017, the Strickholms filed their proposed complaint against

      Anonymous NP with the IDOI. The Strickholms alleged medical negligence,

      specifically that Anonymous NP had breached the relevant standard of care in

      her treatment of Peter up to and through at least December 8, 2015, causing

      harm to Peter Strickholm. On February 1, 2018, Anonymous NP filed her

      petition for preliminary determination of law and summary judgment in the

      trial court. Anonymous NP alleged that the cause of action filed by the

      Strickholms was not timely filed and alleged that the last day she provided any



      Court of Appeals of Indiana | Opinion 19A-MI-696 | November 21, 2019
                                                                                Page 4 of 12
      health care to Peter was December 1, 2015, when she prescribed the Lisinopril-

      HCTZ.

[7]   On February 6, 2019, the trial court heard argument on Anonymous NP’s

      motion for preliminary determination of law and summary judgment and, on

      March 1, 2019, granted summary judgment in favor of Anonymous NP. Id. at

      12, 13. The trial court concluded that the designated evidence established as a

      matter of law that Anonymous NP did not provide any medical care to Peter

      after December 1, 2015, thus rendering the Strickholms’ complaint late by three

      days. Specifically, the trial court concluded that (1) the continuing-wrong

      doctrine did not apply to Anonymous NP’s single act of prescribing Lisinopril-

      HCTZ to Strickholm; (2) Anonymous NP did not provide any health care to

      Peter on December 8, 2015, because she did not personally see him; and (3) her

      December 11, 2015, review and approval of the report generated by the LPN

      did not constitute the provision of care.


                                 Discussion and Decision
[8]   The Strickholms contend that the trial court erred when it entered summary

      judgment in favor of Anonymous NP. When reviewing the grant or denial of a

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

      Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind.

      Ct. App. 2000). Summary judgment is appropriate only where the evidence

      shows there is no genuine issue of material fact and the moving party is entitled

      to a judgment as a matter of law. Id.; Ind. Trial Rule 56(C). To prevail on a

      motion for summary judgment, a party must demonstrate that the undisputed


      Court of Appeals of Indiana | Opinion 19A-MI-696 | November 21, 2019
                                                                                 Page 5 of 12
      material facts negate at least one element of the other party’s claim. Merchs.

      Nat’l Bank, 741 N.E.2d at 386. Once the moving party has met this burden with

      a prima facie showing, the burden shifts to the nonmoving party to establish that

      a genuine issue does in fact exist. Id. The party appealing the summary

      judgment bears the burden of persuading us that the trial court erred. Id. “In

      determining whether there is a genuine issue of material fact precluding

      summary judgment, all doubts must be resolved against the moving party and

      the facts set forth by the party opposing the motion must be accepted as true.”

      Lawlis v. Kightlinger & Gray, 562 N.E.2d 435, 438–39 (Ind. Ct. App. 1990), trans.

      denied.

[9]   The Indiana Medical Malpractice Act (“the MMA”) governs medical

      malpractice claims against health care providers, with malpractice defined as “a

      tort or breach of contract based on health care or professional services that were

      provided, or that should have been provided, by a health care provider, to a

      patient.” Ind. Code § 34-18-2-18. The MMA defines health care as follows:

      “Health care means an act or treatment performed or furnished, or that should

      have been performed or furnished, by a healthcare provider for, to, or on behalf

      of a patient during the patient’s medical care, treatment, or confinement.” Ind.

      Code § 34-18-2-13.

                [T]he MMA [is] a statute that applies to claims of personal injury
                or death proximately caused by a “health care provider,” as that
                term is defined in the MMA. […] We will usually refer to this
                type of claim in this opinion as “medical malpractice” or just
                “malpractice.” The MMA did not create or establish the medical
                malpractice claim; it only imposed procedural requirements on


      Court of Appeals of Indiana | Opinion 19A-MI-696 | November 21, 2019
                                                                                 Page 6 of 12
               the prosecution of them. Chamberlain v. Walpole, 822 N.E.2d 959,
               961 (Ind. 2005).
               One of the requirements of the MMA is that a proposed medical
               malpractice complaint first be filed with the [IDOI] for review by
               a medical panel before the complaint is filed in court.
       Ellenwine v. Fairley, 846 N.E.2d 657, 660 (Ind. 2006).

[10]   The only issue in this appeal is whether there is a genuine issue of material fact

       concerning whether the Strickholms’ proposed complaint was timely. “A claim

       […] may not be brought against a health care provider based upon professional

       services or health care that was provided or that should have been provided

       unless the claim is filed within two (2) years after the date of the alleged act,

       omission, or neglect[.]” Ind. Code § 34-18-7-1. The existence of a genuine

       issue of material fact as to whether (1) Anonymous NP provided any health

       care to Peter on or after December 4, 2015, or (2) the continuing-wrong

       doctrine applies to extend the deadline for filing past December 4, 2017,

       precludes the entry of summary judgement in favor of Anonymous NP on the

       question of timeliness.

[11]   We choose to first address the Strickholms’ allegation that Anonymous NP

       provided health care to him after December 4, 2015. The Strickholms contend,

       inter alia, that the trial court erred in concluding as a matter of law that

       Anonymous NP did not provide health care to Peter on December 8 or 11,

       2015, when, at some point, she allegedly (1) saw him personally during his

       December 8 appointment and/or (2) reviewed and approved the report




       Court of Appeals of Indiana | Opinion 19A-MI-696 | November 21, 2019
                                                                                      Page 7 of 12
       regarding his blood-pressure test results on December 11, 2015.2 Because both

       of these dates are later than December 4, 2015, a genuine issue of material fact

       as to either one will get the Strickholms past summary judgment on the issue of

       timeliness.

[12]   We choose to address the claim that there is a genuine issue of material fact that

       Anonymous NP’s December 11, 2015, act of reviewing and approving the

       record of Peter’s earlier visit constituted the provision of health care, and we

       find it to be dispositive. Anonymous NP characterizes her approval as merely

       “an administrative function to close the open note in Peter Strickholm’s

       medical record[,]” Appellee’s Br. p. 23, and contends that the only response to

       Peter’s December 8, 2015, visit was made by the physician in the office that day

       and/or the LPN as a matter of law. We have little hesitation in concluding

       otherwise. As mentioned, the MMA concerns health care that was provided or

       “that should have been provided, by a health care provider, to a patient.” Ind.

       Code § 34-18-2-18 (emphasis added); see also Ind. Code § 34-18-7-1 (“A claim




       2
        It is worth noting that the Strickholms’ argument that Anonymous NP’s allegedly-negligent acts or
       omissions constituted health care is essentially the same as its continuing-wrong-doctrine argument.
                “The doctrine of continuing wrong applies where an entire course of conduct combines to
                produce an injury.” Garneau v. Bush, 838 N.E.2d 1134, 1143 (Ind. Ct. App. 2005), trans.
                denied (2006). When this doctrine is applicable, the two-year statute of limitations period
                begins to run at the end of the continuing wrongful act. Id. “In order to apply the
                doctrine, the plaintiff must demonstrate that the alleged injury-producing conduct was of
                a continuous nature.” Id.
       Szamocki v. Anonymous Dr. & Anonymous Grp., 70 N.E.3d 419, 424 (Ind. Ct. App. 2017), trans. denied.
       Whether one considers Anonymous NP’s allegedly-negligent acts or her allegedly-negligent omission to be
       free-standing acts of health care or the mere continuation of her previous act of prescribing Lisinopril-HCTZ
       to Peter, it seems to amount to the same thing.



       Court of Appeals of Indiana | Opinion 19A-MI-696 | November 21, 2019
                                                                                                         Page 8 of 12
       […] may not be brought against a health care provider based upon professional

       services or health care that was provided or that should have been provided unless

       the claim is filed within two (2) years after the date of the alleged act, omission,

       or neglect[.]”) (emphases added). Even if we assume that Anonymous NP did

       not see Peter after December 1, 2015, there is designated evidence that

       December 11, 2015, was the last opportunity she had to evaluate Peter’s latest

       test results and order further testing or further treatment. We conclude that the

       allegation that Anonymous NP negligently failed to act after evaluating Peter’s

       test results generates a genuine issue of material fact regarding whether she

       provided health care to Peter on December 11, 2015.

[13]   Anonymous NP relies on the Indiana Supreme Court’s decision in Havens v.

       Ritchey, 582 N.E.2d 792 (Ind. 1991), claiming that it stands for the proposition

       that nonfeasance claims are limited to situations involving face-to-face

       encounters between patients and health care providers. This strikes us as an

       overbroad reading of Havens, which is distinguishable from this case on the facts

       in any event. In Havens, the patient, who was suffering foot pain, last visited

       Dr. Ritchey on July 3, 1985, and filed a proposed malpractice complaint against

       him for alleged misdiagnosis on October 14, 1987. Id. at 793. The Indiana

       Supreme Court concluded that Havens’s malpractice action was untimely,

       reasoning that

               [t]here is nothing in the record to demonstrate that Ritchey
               would have had any occasion to diagnose Havens’ problem after
               [July 3, 1985]. A physician cannot be under a continuing duty to
               review all files daily to ensure that he did not misdiagnose a
               condition of a patient he may not have seen for months or even

       Court of Appeals of Indiana | Opinion 19A-MI-696 | November 21, 2019
                                                                                   Page 9 of 12
               years. This duty would be completely overwhelming to health
               care providers, and cut against the purposes of the [MMA]. We
               hold that when the sole claim of medical malpractice is a failure
               to diagnose, the omission cannot as a matter of law extend
               beyond the time the physician last rendered a diagnosis. […] As a
               matter of law, the latest date upon which Havens’ claim began to
               run was July 3, 1985, the last date Havens visited Dr. Ritchey’s
               office to give Ritchey an opportunity to diagnose his condition
               properly.
       Id. at 795–96.

[14]   So, the Indiana Supreme Court identified July 3, 1985, as the date on which the

       two-year statute of limitations began to run not because it was the last time

       Havens saw Dr. Ritchey in person, but because it was the last date on which

       Dr. Ritchey had a reasonable opportunity to properly diagnose Havens’s

       condition. Consequently, Havens does not help the Anonymous NP, as the last

       opportunity Anonymous NP had to diagnose Peter’s condition properly was

       allegedly December 11, 2015. This is not a case like Havens, where it is being

       alleged that Anonymous NP failed to continuously revisit and reevaluate

       Peter’s diagnosis long after she had last seen him or acquired any new

       information about his health.

[15]   Anonymous NP also relies on our decision in Szamocki, 70 N.E.3d at 419,

       claiming that it too stands for the proposition that a claim of nonfeasance

       cannot be based on anything that occurs after the last in-person encounter

       between health care provider and patient. As with Havens, we feel that Szamocki

       cannot be read so broadly and that Szamocki, like Havens, is factually

       distinguishable from the instant case. In Szamocki, the doctor prescribed



       Court of Appeals of Indiana | Opinion 19A-MI-696 | November 21, 2019
                                                                                Page 10 of 12
mesalamine to Szamocki to treat “stomach issues” and Szamocki returned for a

follow-up appointment on December 10, 2012. Id. at 422–23. Szamocki never

scheduled another appointment. Id. at 423. In 2013, Szamocki learned that she

was suffering renal failure, and filed a proposed complaint against the doctor on

February 25, 2015, alleging negligent prescription of mesalamine and failure to

monitor her renal function. Id. In ruling that Szamocki’s malpractice

complaint was untimely, we noted that “[t]he last time that [the doctor] saw

Szamocki was on December 10, 2012. This was the last opportunity that [the

doctor] would have had to monitor (or fail to monitor) Szamocki’s renal

function while she was taking mesalamine.” Id. at 425–26. So, as in Havens, it

was the fact that the last appointment was the last opportunity the doctor had to

properly diagnose the patient was dispositive, not that it involved a face-to-face

encounter. Indeed, we recognized as much in Szamocki: “Obviously, we can

envision countless scenarios where other facts would come into play, and the

last physician–patient encounter will not be dispositive in determining whether

an entire course of care resulted in a continuing wrong in the context of a

patient’s claim for failure to monitor.” Id. at 427. We conclude that this case

represents one of those countless other scenarios. Anonymous NP’s reliance on

Havens and Szamocki is unavailing.3




3
  Havens and Szamocki are both cases in which the claims were evaluated pursuant to the continuing-wrong
doctrine. We find them to be instructive, however, because, as mentioned, the Strickholms’ claim that
Anonymous NP continued to provide health care to Peter is essentially a continuing-wrong claim in this
case.



Court of Appeals of Indiana | Opinion 19A-MI-696 | November 21, 2019
                                                                                             Page 11 of 12
                                                Conclusion
[16]   We conclude that there is a genuine issue of material fact as to whether

       Anonymous NP provided health care to Peter on December 11, 2015.

       Consequently, we reverse the trial court’s entry of summary judgment in favor

       of Anonymous NP and remand for trial on the question of timeliness.

[17]   We reverse the judgment of the trial court and remand.

       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-MI-696 | November 21, 2019
                                                                              Page 12 of 12
