Adams v. Luros

• Decision Date: 07 July 1980
• Docket Number: No. 1-1179-A-311,1-1179-A-311
• Citation: 406 N.E.2d 1199
• Parties: Paul Michael ADAMS and Joanne Adams, Appellants (Plaintiff below), v. J. Theodore LUROS, Appellee (Defendant below).
• Court: Indiana Appellate Court

Page 1199

406 N.E.2d 1199

Paul Michael ADAMS and Joanne Adams, Appellants (Plaintiff below), v. J. Theodore LUROS, Appellee (Defendant below).

No. 1-1179-A-311.

Court of Appeals of Indiana, First District.

July 7, 1980.

Phillip A. Sallee, Bloomington, for appellants.

Gary J. Clendening, Joseph D. O'Connor, III, Bunger, Harrell & Robertson, Bloomington, for appellee.

ROBERTSON, Presiding Judge.

This is a medical malpractice case. The facts, most favorable to the appellant, are that the plaintiff-appellant, Paul Michael Adams (Adams), first saw the defendant-appellee, Dr. J. Theodore Luros (Dr. Luros), in January 1973 for lower back pain, partial paralysis of his right leg and "toe drop". Dr. Luros had been recommended by Adams's personal physician. Dr. Luros had Adams admitted twice to a hospital in Indianapolis and conducted extensive tests, but could not diagnose the problem. Adams contends that Dr. Luros told him to "live with it" until it got better or worse and Adams inferred he should come back if the condition worsened. This was in July of 1973. In 1976, Adams started experiencing difficulty with the leg beyond the problems he had earlier. Eventually, in 1977, after consulting other physicians, the problem was diagnosed as a tumor in the middle region of Adams's spinal cord. The tumor was removed by surgery on March 17, 1977, but Adams was left without the use of his legs. Adams brought suit on February 26, 1979, contending that Dr. Luros failed to have ordered a myelogram made in the critical area and that such a failure constituted malpractice.

Default judgment was entered against Dr. Luros; however, the default was set aside and Dr. Luros's motion for summary judgment based on the statute of limitations was granted. Adams appeals the granting of both motions.

We first consider whether it was reversible error to set aside the default judgment. It is well settled that the standard of review is whether the trial court abused its discretion. Pounds v. Pharr, (1978) Ind.App., 376 N.E.2d 1193; Fitzgerald v. Brown, (1976) Ind.App., 344 N.E.2d 309; Cazarus v. Blevins, (1974) 159 Ind.App. 512, 308 N.E.2d 412. The record shows that Dr. Luros had received the summons and complaint, but he had also received a letter from the Patient's Compensation Authority. The letter suggested that the cause of action was proceeding under the new Malpractice Act, which, of course, requires a Review Panel determination before a lawsuit can proceed. The trial court could have reasonably found that the doctor was misled by this letter into thinking that the lawsuit was not proceeding, when in fact, it was. We find no abuse of discretion here.

Case law states that the motion to set aside a default judgment must further show the movant had a good and meritorious defense. Fitzgerald, supra. Here, Dr. Luros claimed the defense of the statute of limitations. Adams complains that such a defense does not go to the merits of the case and, as a a matter of equity, he should not be allowed to raise it. We find no authority for such a novel proposition and, thus, reject it.

The summary judgment was granted because of the affirmative defense of the statute of limitations. The trial court apparently was of the opinion that the new Medical Malpractice Act statute of limitations applies. We disagree. Ind. Code 16-9.5-1-7 states that the provisions of the Medical Malpractice Act do not apply to any act of malpractice which occurred before July 1, 1975. The statute is alleged to have been tolled by fraudulent concealment past the July 1, 1975 date; however, we think the former statute of limitations still applies. ¹

We make one more point in this regard concerning the theory of fraudulent concealment raised by Adams. Dr. Luros presents at first glance an interesting argument that, because Adams did not raise the theory in his complaint or by reply, Adams is prohibited from doing so now. Dr. Luros cites Ind. Rules of Procedure, Trial Rule 9(C) which states all averments of fraud shall be specifically pleaded. Apparently, under former rules of pleading, the allegation of fraud which would toll the statute of limitations would be raised by reply. See Guy v. Schuldt, (1956) 236 Ind. 101, 138 N.E.2d 891. Our modern rules of pleading, however, discourage replies. T.R. 7(A)(5) states, "Matters formerly required to be pleaded by a reply or other subsequent pleading may be proved even though they are not pleaded." W. Harvey, Indiana Practice, § 7.7 (1969), states,

A reply to a counterclaim should not include denials or allegations relating to other matters in the answer without a court order. And without such an order, a reply is not justified to special defenses listed in Rule 9. Thus, without a reply, plaintiff may defeat a defense of the statute of limitations by facts showing equitable estoppel.

We, thus, reject this argument.

The trial court, in its opinion, set forth two alternative grounds for entering summary judgment. First, the trial court found, as a matter of law, that the physician-patient relationship had ended more than two years prior to the filing of this lawsuit. The result of this finding by the trial court is that Adams is barred by the statute of limitations, regardless of the possible tolling of the statute of limitations by fraudulent concealment. The trial court correctly stated the law, but we determine that there is a factual controversy as to when the physician-patient relationship ended.

Guy v. Schuldt, (1956) 236 Ind. 101, 138 N.E.2d 891 is the leading case on the applicability of the doctrine of fraudulent concealment to the statute of limitations for malpractice under consideration here. Guy held that fraudulent concealment of the malpractice by the physician tolls the statute of limitations. While the general rule is that the fraud must be an affirmative act which amounts to more than passive silence, French v. Hickman Moving & Storage, (1980) Ind.App., 400 N.E.2d 1384, 1389, Guy also held, because of the fiduciary nature of the physician-patient relationship, that the physician has a duty to disclose material information to the patient and a failure to do so results in a fraudulent concealment. Of course, the natural corollary to this rule is that when the relationship ends, the duty to disclose ends and the fraudulent concealment by silence ends, as stated by Guy, supra at 109, 138 N.E.2d at 895: ²

But where the duty to inform exists by reason of a confidential relationship, when that relationship is terminated the duty to inform is also terminated; concealment then ceases to exist. After the relationship of physician and patient is terminated the patient has full opportunity for discovery and no longer is there a reliance by the patient nor a corresponding duty of the physician to advise or inform. The statute of limitations is no longer tolled by any fraudulent concealment and begins to run.

The trial court found, as a matter of law, that the physician-patient relationship here terminated some time prior to two years before the filing of this lawsuit. The trial court relied on the fact that Adams had not visited or been treated by Dr. Luros for more than five years before the filing of the lawsuit. The trial court discounted Adams's allegation that he still considered Dr. Luros to be his neurosurgeon and that Adams still carried the business card of Dr. Luros in his wallet.

Our standard of review in a summary judgment case is that it is appropriate where there is no genuine issue as to...