MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Dec 06 2019, 8:48 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Martin H. Kinney, Jr.                                    Norris Cunningham
Dolt, Thompson, Shepherd                                 Christina L. Essex
& Conway, PSC                                            Kathryn E. Cordell
Louisville, Kentucky                                     Katz Korin Cunningham PC
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Hazel M. Sendelweck,                                     December 6, 2019
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         19A-CT-1582
        v.                                               Appeal from the Dubois Circuit
                                                         Court
Greene County General Hospital                           The Honorable Nathan A.
d/b/a Good Samaritan Society-                            Verkamp, Judge
Northwood Retirement                                     Trial Court Cause No.
Community; and The                                       19C01-1807-CT-452
Evangelical Lutheran Good
Samaritan Society d/b/a Good
Samaritan Society-Northwood
Retirement Community,
Appellees-Defendants



Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1582 | December 6, 2019                    Page 1 of 13
[1]   Hazel Sendelweck appeals the trial court’s order granting summary judgment in

      favor of Greene County General Hospital, d/b/a Good Samaritan Society—

      Northwood Retirement Community (Greene County Hospital), and The

      Evangelical Lutheran Good Samaritan Society, d/b/a Good Samaritan

      Society—Northwood Retirement Community (Evangelical Lutheran)

      (collectively, Defendants). Finding that Sendelweck failed to timely file her

      claim before the running of the statute of limitations and that there was no due

      process violation, we affirm.


                                                    Facts
[2]   Sendelweck received skilled nursing care from Defendants from March 15,

      2016, through May 13, 2016. On May 9, 2016, Sendelweck allegedly received

      an injury to her shoulder while in the care of Defendants.


[3]   On April 10, 2018, Sendelweck filed a Proposed Complaint for damages with

      the Indiana Department of Insurance (IDOI) for alleged medical malpractice

      surrounding the injury to her shoulder, naming both Greene County Hospital

      and Evangelical Lutheran, both operating as “Good Samaritan Society—

      Northwood Retirement Community,” as Defendants. At the time the Proposed

      Complaint was filed, there were twenty-nine days remaining before the

      applicable statute of limitations barred Sendelweck’s claim; the filing of the

      complaint temporarily tolled the running of the statute of limitations while the

      IDOI reviewed the complaint.




      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1582 | December 6, 2019   Page 2 of 13
[4]   In a letter dated April 19, 2018, and received on or around April 23, 2018, the

      IDOI notified Sendelweck that neither Greene County Hospital nor Evangelical

      Lutheran had filed proof of financial responsibility or paid the required

      surcharge and therefore were not qualified providers under the Indiana Medical

      Malpractice Act (MMA). In the letter, the IDOI mislabeled Greene County

      Hospital as Greene County General Hospital, d/b/a Good Samaritan

      Society—Northwood Retirement County, rather than Community. Appellees’

      App. Vol. II p. 20.


[5]   Due to this mislabeling, Sendelweck believed the IDOI had made an error in its

      determination, and she followed up with the IDOI in an attempt to clarify

      whether the correctly named party was, in fact, a qualified provider under the

      MMA. The IDOI again informed Sendelweck that the letter was a preliminary

      indication that Defendants were not qualified, but that the case could continue

      with the IDOI upon a showing by Sendelweck that they were qualified.1


[6]   Sendelweck filed a complaint with the trial court on July 11, 2018, alleging

      medical malpractice against Greene County Hospital and Evangelical

      Lutheran. On July 26, 2018, Defendants filed a motion to dismiss alleging the

      claim was barred by the statute of limitations, which they contended expired on




      1
        Sendelweck claimed that she discovered by her own independent research that the Indiana Patient
      Compensation Fund Database website lists Greene County General Hospital as a qualified provider. This
      prompted Sendelweck to contact Defendants’ counsel via email on June 11, 2018, to “ask[] if they were going
      to respond to the Complaint,” to which Defendants’ counsel replied the same day that Defendants had “not
      received notice of any state court filing.” Appellees’ App. Vol. II p. 41, 49. Only after this interaction did
      Sendelweck finally file the suit in state court a month later.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1582 | December 6, 2019                 Page 3 of 13
      May 22, 2018, twenty-nine days after Sendelweck received the IDOI’s letter.

      On August 14, 2018, Defendants’ pleading was converted to a motion for

      summary judgment.


[7]   Sendelweck filed a Proposed Amended Complaint with the IDOI on October

      25, 2018, against the two original Defendants as well as Greene County

      Hospital in its individual capacity. The malpractice allegations in the amended

      complaint were identical to those in the original Proposed Complaint and in the

      complaint filed with the trial court. The IDOI notified Sendelweck on October

      31, 2018, that the two original Defendants still were not qualified providers

      under the MMA, but that Greene County Hospital was a qualified provider in

      its individual capacity only.


[8]   The trial court heard oral argument on the motion for summary judgment on

      May 30, 2019. On June 12, 2019, the trial court granted summary judgment in

      favor of Defendants and dismissed Sendelweck’s claims. Sendelweck now

      appeals.


                                   Discussion and Decision
[9]   Sendelweck argues that the trial court erred in granting summary judgment to

      Defendants for two reasons: first, that the trial court improperly found that the

      statute of limitations barred Sendelweck’s claims; and second, that the MMA’s

      procedure for determining the qualified status of health care providers, as

      applied to Sendelweck, violates due process of law under the Indiana

      Constitution.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1582 | December 6, 2019   Page 4 of 13
[10]   Our standard of review for summary judgment is well established:


               Summary judgment is appropriate only when there are no
               genuine issues of material fact and the moving party is entitled to
               judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing
               a trial court’s ruling on summary judgment, this court stands in
               the shoes of the trial court and applies the same standard in
               determining whether to affirm or reverse the grant of summary
               judgment. We must therefore determine whether there is a
               genuine issue of material fact and whether the trial court has
               correctly applied the law.


               Relying on specifically designated evidence, the moving party
               bears the burden of making a prima facie showing that there are
               no genuine issues of material fact and that it is entitled to
               judgment as a matter of law. If the moving party meets this
               burden, the burden then shifts to the nonmovant to set forth
               specifically designated facts showing that there is a genuine issue
               for trial.


               A genuine issue of material fact exists where facts concerning an
               issue that would dispose of the issue are in dispute or where the
               undisputed material facts are capable of supporting conflicting
               inferences on such an issue. In our review, we consider all of the
               designated evidence in the light most favorable to the nonmoving
               party.


       Robbins v. Trustees of Ind. Univ., 45 N.E.3d 1, 5-6 (Ind. Ct. App. 2015) (internal

       quotations and some internal citations omitted).


                                     I. Statute of Limitations
[11]   Sendelweck first argues that the trial court erred by granting summary judgment

       to Defendants because the April 18, 2018, letter from the IDOI did not provide

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1582 | December 6, 2019   Page 5 of 13
       proper notice to Sendelweck to effectively recommence the running of the

       statute of limitations. More specifically, Sendelweck contends that because the

       letter misnamed the Greene County Hospital as “Green County General

       Hospital, d/b/a Good Samaritan Society Northwood Retirement County,”

       rather than Northwood Retirement Community, this was not a proper

       notification from the IDOI regarding whether Defendants were qualified

       providers and it therefore did not cause the statute of limitations to

       recommence.


[12]   The statute of limitations for medical malpractice claims is two years from the

       date of the alleged injury. Ind. Code § 34-11-2-4; id. § 34-18-7-1(b). The MMA

       governs medical malpractice claims against “qualified” health care providers,

       meaning those providers who file proof of financial responsibility with the IDOI

       and pay a required surcharge. Id. § 34-18-3-1, -2. Before an action against a

       qualified health care provider may be commenced in state court, the claimant

       must first file a proposed complaint with the IDOI. Id. § 34-18-8-4. Once a

       proposed complaint is filed, the statute of limitations is tolled until the claimant

       receives from the IDOI either an opinion or until a notification that the named

       health care provider is not qualified under the MMA, at which point the statute

       of limitations begins to run again. Id. § 34-18-7-3; Guinn v. Light, 558 N.E.2d

       821, 824 (Ind. 1990). The claimant then has the remainder of the statutory

       period to file a complaint in court before being time-barred. Id.


[13]   Because Sendelweck’s alleged injury occurred on May 9, 2016, the two-year

       statute of limitations would ordinarily run until May 9, 2018. Once Sendelweck

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1582 | December 6, 2019   Page 6 of 13
       filed the Proposed Complaint with the IDOI on April 10, 2018, the statute of

       limitations was tolled, with twenty-nine days remaining, until the IDOI either

       issued an opinion on the matter or notified Sendelweck that the health care

       providers named in the Proposed Complaint were not qualified under the

       MMA. Sendelweck argues that, because the Greene County Hospital was

       misnamed as d/b/a Good Samaritan Society—Northwood Retirement County,

       she never received proper notice and therefore nothing triggered the re-running

       of the remaining twenty-nine-day statutory period.


[14]   We have addressed the sufficiency of IDOI notice to recommence the running

       of the applicable statute of limitations in multiple prior cases. See, e.g., Rumell v.

       Osolo Emergency Med. Servs., Inc., 88 N.E.3d 1111, 1114-20 (Ind. Ct. Appt. 2017),

       trans. denied; Burns v. Hatchett, 786 N.E.2d 1178, 1181-83 (Ind. Ct. App. 2003);

       Lusk v. Swanson, 753 N.E.2d 748, 751-52 (Ind. Ct. App. 2001); Shenefield v.

       Barrette, 716 N.E. 2d 1, 3-5 (Ind. Ct. App. 1999). In each of these cases, this

       Court upheld the grant of summary judgment in favor of the defendants

       because the plaintiffs failed to file in state court before the statute of limitations

       expired. In each case, this Court in each found that the IDOI’s letter containing

       a preliminary determination of a provider’s qualified status was sufficient, even

       if containing some ambiguity or lacking total conclusiveness, to re-trigger the

       running of the statute of limitations. In the event conflicting or unclear

       information regarding a provider’s qualified status is provided to a claimant, the

       claimant bears an affirmative obligation to inquire further into whether the

       provider is qualified or not. Lusk, 753 N.E.2d at 752.


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1582 | December 6, 2019   Page 7 of 13
[15]   The facts surrounding this case are most analogous to those in Rumell. The

       plaintiff in that case received a notice letter from the IDOI stating the provider

       was not qualified under the MMA. Like Sendelweck, Rumell then followed up

       with the IDOI and was told, just as Sendelweck was here, that the information

       in the letter was a preliminary determination of the provider’s status. Rumell

       argued that the post-letter action of following up with the IDOI showed that the

       letter was not conclusive enough to trigger the running of the statute of

       limitations. Rumell, 88 N.E.3d at 1118. This Court disagreed: “As the trial court

       properly determined, [n]owhere in [prior case law] is there any indication that

       the IDOI’s determination needs to be conclusive, definitive, or otherwise

       beyond all possibility of subsequent modification for its receipt to recommence

       the statute of limitations.” Id. (internal quotations omitted). Further, the

       information received when Rumell followed up with the IDOI, “although

       indicating that the status of the [providers] could be changed, did not in any

       way contradict the information concerning the [providers’] status provided in

       the [initial] letter.” Id. at 1119.


[16]   We see no meaningful distinction between the facts in Rumell and those in the

       instant case. Sendelweck appropriately filed a proposed complaint with the

       IDOI, correctly naming as defendants Greene County Hospital and Evangelical

       Lutheran, both d/b/a Good Samaritan Society—Northwood Retirement

       Community. The filing of the proposed complaint tolled the statute of

       limitations until the IDOI reviewed the complaint and informed Sendelweck,

       via the April 19, 2018, letter, that neither of the Defendants had filed proof of


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1582 | December 6, 2019   Page 8 of 13
       financial responsibility or paid the required surcharge and thus were not

       qualified providers under the MMA. Once received, the letter provided

       sufficient notice to Sendelweck to trigger the running of the remaining statutory

       period, which meant Sendelweck had until May 22, 2019, to file her complaint

       with the trial court.


[17]   Although the IDOI mislabeled the d/b/a designation for one of the parties, the

       burden was nonetheless on Sendelweck to follow up and clarify the issue with

       the IDOI and to show that the misnamed provider was actually qualified, if that

       were the case. And interestingly, although Sendelweck claims to have seen

       Greene County Hospital listed as a qualified provider on the Indiana Patient

       Compensation Fund Database website, she never presented that information to

       the IDOI to prove its qualified provider status. Instead, she only contacted

       Defendants to ask if they were going to respond to the Proposed Complaint, to

       which they replied they were waiting for her to file in the trial court. Appellees’

       App. Vol. II. p. 41, 49.


[18]   Furthermore, Sendelweck knew the correct identities of the named Defendants

       and was equipped with the proper business names to conduct her own

       independent research. Therefore, this was not a case of the IDOI or the

       providers misleading a claimant with incomplete information; it was merely a

       typographical error, and not a significant or misleading one at that. Compare

       Schriber v. Anonymous, 848 N.E.2d 1061, 1064-65 (Ind. 2006) (noting that

       continued tolling of the statute of limitations was appropriate remedy where

       defendants attempted to obfuscate plaintiff’s ability to determine provider’s

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1582 | December 6, 2019   Page 9 of 13
       proper business name, and thus there was reason to doubt the accuracy of the

       IDOI’s determination), with Rumell, 88 N.E.3d at 1119-20 (distinguishing

       Schriber where “[h]ere, on the other hand, [plaintiff] knew the identities of the

       Defendants, so there was little reason to view the IDOI’s indication that the

       Defendants were not qualified as suspect” (emphasis added)).


[19]   Sendelweck waited until a full fifty days after the statute of limitations expired

       to file the complaint in court, and made no attempt to show to the IDOI that

       the Defendants’ qualification status may have been incorrect. Nor did she make

       any effort to protect herself from being time-barred by filing in court to preserve

       her claim while she continued to clarify the providers’ status with the IDOI. See

       I.C. § 34-18-8-7 (authorizing claimants to “commence an action in court for

       malpractice at the same time the claimant’s proposed complaint is being

       considered by [the IDOI],” so long as anonymity is preserved for the defendants

       until the IDOI issues an opinion or makes a qualification determination);

       Shenefield, 716 N.E.2d at 6 (“The [plaintiffs] could have avoided a limitations

       problem by filing their complaint with both the [IDOI] and the court.”). And

       Sendelweck even outright conceded to the trial court that the claim was filed

       after the statute of limitations had expired: “I think that when we filed with this

       Court it was outside the window. . . . I mean, I don’t know what else to say to

       the Court. I mean, I apologize to the Court that I wasn’t—didn’t have the

       foresight to file the anonymous complaint with the Court . . . .” Tr. Vol. II p.

       13.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1582 | December 6, 2019   Page 10 of 13
[20]   In light of the evidence designated for the summary judgment motion, we find

       no genuine issue of material fact as to whether Sendelweck’s medical

       malpractice claim was barred by the statute of limitations. The IDOI letter

       provided sufficient notice to recommence the running of the statute of

       limitations, which still gave Sendelweck nearly another month to take

       appropriate action. And to the extent that there was conflicting information

       found during her independent research of the Defendants’ qualified status,

       Sendelweck nonetheless failed to act timely by neither making the proper

       showing for the IDOI nor preserving her claim in court.


                                            II. Due Process
[21]   Sendelweck next argues that, regardless of whether the IDOI provided sufficient

       notice or her claim was barred by the statute of limitations, the MMA as

       applied to her case violates the due process guarantee under Article 1, Section

       12 of the Indiana Constitution because the MMA “fails to provide a reasonable

       means for [Sendelweck] to prospectively determine the qualified status of health

       care providers. Thus, improperly denying her access to justice.” Appellant’s Br.

       p. 10.


[22]   Article 1, Section 12 provides that “[a]ll courts shall be open; and every person,

       for injury done to him in his person, property, or reputation, shall have remedy

       by due course of law. Justice shall be administered freely, and without

       purchase; completely, and without denial; speedily, and without delay.” The

       “due course of law” language has been interpreted by this Court to require “a


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1582 | December 6, 2019   Page 11 of 13
       fair proceeding in which the fundamental requirements of due process are

       notice and an opportunity for hearing appropriate to the nature of the case.”

       Lake Cent. Sch. Corp. v. Scartozzi, 759 N.E.2d 1185, 1190 (Ind. Ct. App. 2001).


[23]   Sendelweck argues that the MMA and caselaw essentially require her to file a

       complaint with the IDOI to determine whether a provider is qualified as well as

       file a complaint in court, but that since the filing with the IDOI is mandated

       before she is allowed to exercise her right to seek redress in court, this dual-

       filing requirement amounts to an “unreasonable impediment” on pursuing a

       valid claim under McIntosh v. Melroe Co., 729 N.E.2d 972, 980 (Ind. 2000).


[24]   Sendelweck’s reliance on McIntosh is misplaced. In McIntosh, our Supreme

       Court was reviewing the constitutionality under Article 1, Section 12 of a

       statute of repose for products liability that barred all claims outright for injuries

       occurring after ten years following an event (the delivery of a product to a

       consumer) unrelated to any injury suffered, thereby eliminating any remedy for

       any injuries sustained after the passage of a set amount of time. The Court held

       that with such limitations on available remedies, “the limitation must not be an

       unreasonable impediment to the exercise of an otherwise valid claim,” id. at

       980, and it is this language that Sendelweck relies on to contend that the dual-

       filing system under the MMA violates due process.


[25]   Here, in contrast to McIntosh, the statute at issue is a statute of limitations, not a

       statute of repose—rather than having no remedy whatsoever for an otherwise

       valid claim for her alleged injury, Sendelweck had a remedy available, but


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1582 | December 6, 2019   Page 12 of 13
       simply failed to timely seek that remedy, a fact which she conceded at oral

       argument. As such, we simply cannot find that, as applied to Sendelweck, the

       MMA procedure for bringing her claim violated due process under McIntosh.


[26]   In regards to the nature of the dual-filing system itself, we reiterate the

       sentiment expressed by this Court in previous cases and “decline to require, or

       even endorse, the ‘double filing’ . . . due to the potential strategic disadvantages

       it entails and the duplication of effort and additional expense inherent in the

       double filing procedure.” Shenefield, 716 N.E.2d at 6 n.4. But the fact remains

       that this is the current system under which medical malpractice suits operate,

       and even as applied to Sendelweck, there was no deprivation of notice or an

       opportunity to be heard, and therefore no due process violation. Sendelweck

       filed a proposed complaint with the IDOI believing the named providers were

       qualified and, upon notification that they were not, she did not take advantage

       of the opportunity presented to her to present any additional evidence of

       qualified status to the IDOI. Though the current MMA procedure undoubtedly

       risks “encourag[ing] obstreperous legal gamesmanship on the part of defendants

       to medical malpractice claims,” Rumell, 88 N.E.3d at 1121 (Baker, J.,

       concurring), that is simply not what happened here, and no unreasonable

       burden was in place to prevent Sendelweck from pursuing her claim aside from

       her own failure to timely act.


[27]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1582 | December 6, 2019   Page 13 of 13
