Boggs v. Tri-State Radiology, Inc.

• Decision Date: 28 June 2000
• Docket Number: No. 82S04-0002-CV-115.,82S04-0002-CV-115.
• Citation: 730 N.E.2d 692
• Parties: R.C. BOGGS, Individually and on behalf of Carolyn Boggs, Deceased, Appellant (Plaintiff Below), v. TRI-STATE RADIOLOGY, INC., Appellee (Defendant Below).
• Court: Indiana Supreme Court

730 N.E.2d 692

R.C. BOGGS, Individually and on behalf of Carolyn Boggs, Deceased, Appellant (Plaintiff Below), v. TRI-STATE RADIOLOGY, INC., Appellee (Defendant Below).

No. 82S04-0002-CV-115.

Supreme Court of Indiana.

June 28, 2000.

Mary Beth Ramey, Indianapolis, Indiana, Attorney for Appellant.

Douglas V. Jessen, Evansville, Indiana, Karl Mulvaney, Indianapolis, Indiana, Attorneys for Appellee.

ON PETITION TO TRANSFER

BOEHM, Justice.

We hold that the Indiana Constitution is not violated by application of the Medical Malpractice Act's two-year limitations period to bar a claim that was discovered several months before the limitations period expired and well within two years of its occurrence.

Factual and Procedural Background

In July 1991 Carolyn Boggs went to Doctor Robert H. Oswald after detecting a mass in her left breast. A mammogram was taken and Carolyn was instructed to return after one year. On July 28, 1992, a second mammogram was taken, and, based on a comparison with the first, an excisional biopsy was recommended. Both mammograms were taken by Oswald's office and interpreted by physicians at Tri-State Radiology. The biopsy took place on August 12, 1992, and revealed that the mass in Carolyn's left breast was malignant. Subsequently it was discovered that the cancer had metastasized to her liver and that her breast cancer was in Stage IV. Carolyn died on July 28, 1993. On July 1, 1994, Carolyn's husband, R.C. Boggs, filed a proposed medical malpractice complaint pursuant to the Medical Malpractice Act against Oswald and Tri-State.¹ He alleged that "[a]s a direct and proximate result of the carelessness and negligence of [Tri-State], . . . [Carolyn's] malignancy metastasized and by the time it was discovered, it was incurable."

Tri-State filed a motion for preliminary determination of its statute of limitations defense. This is a procedure unique to Medical Malpractice Act claims that permits the trial court to assume jurisdiction over threshold issues before the Medical Review Panel has acted. See Ind.Code § 34-18-11-1 (1998). Tri-State designated Boggs' complaint and the affidavit of the Tri-State doctor, which established the dates of Carolyn's treatment. Boggs designated only his complaint, but contended that there were material issues of fact as to which discovery was needed and that the Medical Malpractice Act's two-year limitations period was unconstitutional. The trial court properly treated this motion as governed by the summary judgment standard of Trial Rule 56. Finding no issue of material fact, the trial court entered judgment in Tri-State's favor on May 21, 1998. The Court of Appeals reversed, holding the medical malpractice statute of limitations unconstitutional as applied to Boggs. See Boggs v. Tri-State Radiology, Inc., 716 N.E.2d 45, 51 (Ind.Ct. App.1999)

.

This appeal raises the following issues: (1) Was the Court of Appeals correct in concluding that the statute of limitations was unconstitutional as applied to Boggs? (2) If not, does either fraudulent concealment or continuing wrong operate to toll the statute of limitations?

Standard of Review

The entry of summary judgment on a motion for a preliminary determination is subject to the same standard of appellate review as any other entry of summary judgment. See, e.g., Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind.1991)

. The standard of appellate review of a summary judgment ruling is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind. 1998). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Shell Oil, 705 N.E.2d at 983-84. When the moving party asserts the statute of limitations as an affirmative defense, however, 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. Conard v. Waugh, 474 N.E.2d 130, 134-35 (Ind.Ct.App.1985). Here, Boggs seeks to avoid the defense by arguing that the statute of limitations is unconstitutional as applied to him and also by asserting that material factual disputes remain that bear on the doctrines of fraudulent concealment and continuing wrong.

I. Statute of Limitations

In Martin v. Richey, 711 N.E.2d 1273, 1284-85 (Ind.1999), and Van Dusen v. Stotts, 712 N.E.2d 491, 493 (Ind.1999), this Court held that the medical malpractice statute of limitations was unconstitutional as applied to the plaintiffs because they were barred from pursuing an otherwise valid medical malpractice claim before they had reason to know of that claim. We concluded that barring their claims violated Article I, Section 12, the Open Courts Clause, and Article I, Section 23, the Equal Privileges and Immunities Clause of the Indiana Constitution. We held that under both constitutional provisions the statute of limitations was unconstitutional where a plaintiff, in the exercise of reasonable diligence, could not have discovered the injury before the expiration of the limitations period. See Martin, 711 N.E.2d at 1282, 1284-85

; Van Dusen, 712 N.E.2d at 493. In Van Dusen, we held that under those circumstances plaintiffs would be allotted the full two-year statutory period to file a claim, running from the time "they discover the malpractice and the resulting injury or facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury." 712 N.E.2d at 493.

Here, however, Carolyn became aware of her injury eleven months before the statute of limitations expired. Thus, she or Boggs could have filed a claim within the two-year limitations period prescribed by the Medical Malpractice Act, but did not. By its terms, the two-year statute bars Boggs' claim. He thus presents the issue whether the statute of limitations is unconstitutional as applied to plaintiffs who cannot reasonably be expected to learn of their injuries at the time of the alleged occurrence of malpractice, but do, or should, become aware of their injuries well before the end of the limitations period.

A. Article I, Section 12

The Court of Appeals held that the statute of limitations as applied to Boggs did not violate Article I, Section 12 because he was not denied a meaningful opportunity to pursue his malpractice claim. Boggs argued that the limitations period often operates as a practical bar by forcing medical malpractice victims who suffer from terminal conditions to commence litigation and simultaneously battle for their lives. There is no doubt some force to Boggs' point. But it is equally plain that nothing prevented him or Carolyn from initiating litigation within the statutory period or attempting to secure a waiver of the limitations period. The legislature has chosen the benefits of certainty over the burdens that may be imposed on still suffering families by a requirement that litigation be filed promptly. This scheme raises no inherent bar to a remedy and leaves our courts open to entertain the claim. Accordingly, it is a constitutional exercise of the balancing of interests that legislatures are called upon to do. The Court of Appeals correctly concluded that Article I, Section 12 is not violated by the application of the statute of limitations to bar Boggs' claim.

B. Article I, Section 23

Although the Court of Appeals found no Article I, Section 12 violation, it concluded that barring Boggs from proceeding with his claim did violate Article I, Section 23 because it granted to some a privilege denied to others similarly situated and therefore created a classification that failed the second prong of Collins v. Day, 644 N.E.2d 72, 80 (Ind.1994). See Boggs, 716 N.E.2d at 50

. The Court of Appeals pointed out that some plaintiffs, like Boggs, have less than the full two-year statutory period to file their claims, but others have the full two years. As the Court of Appeals noted, under Martin et al., the plaintiff who discovers his or her claim the day after the statutory period expires may pursue the claim, but the statute would purport to bar the plaintiff who discovers the malpractice the day before the statutory period expires. See id. The Court of Appeals reasoned that these two plaintiffs are for all practical purposes identically situated, and yet one has hours, minutes, or seconds within which to file a claim, and the other has two years. This was found to be an impermissible classification. Further, the court reasoned, Boggs is situated similarly to the plaintiffs in Martin and Van Dusen, in that they were also unable to discover the malpractice on the day it occurred, and both were allowed two years from discovery to file their claims.

We do not agree that the statute of limitations as applied to Boggs violates Article I, Section 23. In Collins, this Court enunciated a two-part test for determining whether a statute granting unequal privileges or immunities to differing classes of persons passes constitutional muster under Article I, Section 23: "First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated." 644 N.E.2d at 80. In applying this test, we exercise "substantial deference" to the legislature. Id.

As the Court of Appeals noted, and Martin reaffirmed, a classification scheme resulting in different treatment for medical malpractice plaintiffs as compared to other tort victims satisfies the first prong of Collins. See Martin, 711 N.E.2d at 1280-81

. The only issue remaining is whether the classes defined by...