Carrow v. Streeter, 2-379A79

• Decision Date: 14 October 1980
• Docket Number: No. 2-379A79,2-379A79
• Citation: 410 N.E.2d 1369
• Parties: Barbara CARROW and Larry Carrow, Appellants (Plaintiffs Below), v. Ralph STREETER, M.D., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1369

410 N.E.2d 1369

Barbara CARROW and Larry Carrow, Appellants (Plaintiffs Below), v. Ralph STREETER, M.D., Appellee (Defendant Below).

No. 2-379A79.

Court of Appeals of Indiana, Second District.

Oct. 14, 1980.

John F. Townsend, Jr., Townsend, Hovde & Townsend, Indianapolis, for appellants.

Richard L. Fairchild, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Plaintiffs Barbara Carrow (Carrow) and Larry Carrow, husband and wife, appeal from a summary judgment granted in favor of the defendant Dr. Ralph Streeter, M.D., in a professional malpractice action claiming that a genuine issue of material fact existed as to whether the running of the statute of limitations was tolled by fraudulent concealment.

Judgment reversed.

FACTS

After the birth of her last child in 1964 Barbara Carrow was referred by her family physician, Dr. Siebe, to the defendant, Ralph Streeter, an obstetrician-gynecologist for treatment of a fibroid uterus. On September 24, 1964, Dr. Streeter performed a suspension of Carrow's uterus to correct a retrodisplacement. Dr. Streeter further treated Carrow for a miscarriage on May 17, 1971, and she returned to him for three more visits.

On July 18, 1973, Carrow was admitted to Community Hospital in Indianapolis for an abdominocision to investigate heavy bleeding and pain. The next day Dr. Streeter performed a total hysterectomy on Carrow to correct the retrodisplaced uterus. Before the operation Streeter informed Carrow that he would remove the uterus and possibly the tubes and ovaries depending on the condition of her abdomen. He made no mention of the use of stainless steel sutures ¹ nor did he discuss the sutures with Carrow soon after the surgery. The only complication in the surgery was an unusually adamant bladder flap, which caused Carrow to be held in the hospital three days beyond the normal time for a hysterectomy.

During the operation Streeter laid a row of stainless steel sutures at the top of the vaginal vault with the intention that these sutures would remain permanently. Streeter testified that this was his usual procedure, which he preferred to the use of silk or catgut sutures because the stainless steel reduced infection and minimized post-operative bleeding.

After the operation, Carrow experienced continuous abdominal pain, until July 1975. The pain centered in the area of the scar and extended to her back. It worsened upon standing, walking, physical exertion, urination, or intercourse.

Carrow returned to Streeter on August 23, 1973 for a routine post-operative examination. She complained of the pain but the steel sutures were not discussed. Streeter told her that pain was normal and would eventually go away. He recommended exercises to tighten her stomach muscles and prescribed Urispas, a muscle relaxant and pain medication.

Carrow returned to Streeter for a second visit on January 11, 1974, complaining of the pain which Streeter diagnosed as left round ligament pain. Streeter told Carrow that her pain was basically a psychological reaction to the hysterectomy. He again prescribed pills. ²

Carrow last visited Streeter on April 1, 1974, again complaining of the same pain. Streeter examined her but felt no staples out of place. He mentioned a laparoscopic exam but did not recommend that it be done because ninety-five percent of the time the exam showed nothing. He gave her a one-year prescription of the same medication and again represented that the pain was mental and could take a couple of years to go away.

Carrow testified that the sutures were discussed in either the January 11, 1974 or the April 1, 1974 visit. Streeter stated that the sutures would eventually come out and that pain could be associated with them. He told her they could work their way out and fall into the vagina, the bladder or another organ and then pass out through those routes. Streeter also indicated the sutures could come out through the abdominal wall and could be plucked out with tweezers but "there was nothing to worry about."

Streeter's testimony indicates his awareness that the sutures could become displaced if the vagina lengthened after surgery, and that even though the sutures could not be felt by the patient while in the tissue, as they began to work out they would cause pain. Streeter said that this pain would be a sticking sensation in the pelvis.

After the April 1 visit to Streeter, Carrow pursued medical attention from other doctors. During the entire period she continued to see her family doctor, Dr. Siebe. Siebe told Carrow that he had consulted with Streeter, that Streeter believed her pain was mental, and that she should have faith in him. ³ Streeter did not recall these conversations in his deposition. Carrow was also referred by Siebe after the April 1 visit to Dr. Werster for a complete urological and bowel examination, which proved negative, and she was treated by Siebe's vacation replacement for a bladder infection.

Carrow testified that after the January 11, 1974 visit she did not think that the pain was mental. After the April 1, 1974 visit she disbelieved Streeter and decided to cease going to him, but after consultation with her husband following the visit, she decided to accept Streeter's advice and wait for the pain to go away.

In July 1975 Carrow changed family doctors to Dr. Hennessee, who referred her to Drs. Webb and Cline for treatment of the pain. Dr. Cline discovered the sutures out of place on July 7, 1975. He removed most of the sutures surgically and ninety-five percent of the pain subsided. After removal of the last sutures in May 1976, all of the pain disappeared.

On July 25, 1976, Carrow filed a medical malpractice suit arising from the injuries sustained by the hysterectomy. The court granted summary judgment against Carrow because of expiration of the statute of limitations.

ISSUE

The sole issue presented for review is whether there existed a genuine issue of a material fact as to the running of the statute of limitations against Carrow. More precisely stated, we must determine if a material issue of fact exists as to whether the running of the statute of limitations was tolled by fraudulent concealment.

PARTIES' CONTENTIONS

Carrow contends that the physician-patient relationship did not terminate until July 1975, the date she first saw Dr. Cline. She alleges that Streeter's representation that her pain was entirely psychological impeded discovery of the true cause of her injury and that she reasonably relied upon Streeter's representations until she was driven by pain to consult Drs. Hennessee, Webb and Cline in July 1975. She urges us to find that a genuine issue of material fact exists as to whether the doctrine of fraudulent concealment tolled the running of the statute of limitations until two years before her suit was filed.

Streeter counters that the evidence most favorable to Carrow shows that the physician-patient relationship ended at least by April 1, 1974, the date of her last visit. He says Carrow clearly ceased to rely on his representations on this day and that she no longer believed his diagnosis and decided to secure no further treatment from him. Therefore, the fraudulent concealment doctrine ceased to toll the statute of limitations on April 1, 1974, and suit was filed more than two years later, rendering summary judgment on the statute of limitations proper.

DECISION

CONCLUSION -We conclude that material issues of fact exist whether (1) the doctrine of fraudulent concealment applies so as to toll the statute of limitations and (2) whether the doctrine, if applicable, ceased tolling the statute of limitations more than two years before Carrow filed her complaint.

For those with a penchant for repetition we repeat familiar principles. Summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Rules of Procedure, Trial Rule 56(C); Papp v. City of Hammond, (1967) 248 Ind. 637, 230 N.E.2d 326; Boswell v. Lyon, (1980) Ind.App., 401 N.E.2d 735; Tabani v. Hester, (1977) Ind.App., 366 N.E.2d 193. A fact is "material" for the purposes of summary judgment if it facilitates the resolution of any of the issues involved. Brandon v. State, (1976) Ind., 340 N.E.2d 756; Richards v. Goerg Boat & Motor Co., (1979) Ind.App., 384 N.E.2d 1084. Summary judgment also is improper if different inferences can be drawn from undisputed facts. Smith v. P & B Corp., (1979) Ind.App., 386 N.E.2d 1232; Meier v. Combs, (1970) 147 Ind.App. 617, 263 N.E.2d 194.

In determining whether a summary judgment motion was properly granted, facts set out in the opponent's affidavits are taken as true. Depositions, admissions, and so forth are liberally construed in favor of the opponent of the motion, and any doubt about the existence of a material issue of fact is resolved against the proponent of the motion. Podgorny v. Great Central Insurance Co., (1974) 160 Ind.App. 428, 277 N.E.2d 29; Doe v. Barnett, (1969) 145 Ind.App. 542, 251 N.E.2d 688. ⁴

With these thoughts in mind, we pay heed to a special statute of limitations ⁵ for professional malpractice actions which requires the plaintiff to file the cause of action within two years of the date of injury:

No action of any kind for damages, whether brought in contract or tort, based upon professional services rendered or which should have been rendered, shall be brought, commenced or maintained, in any of the courts of this state against physicians, dentists, surgeons, hospitals, sanitariums, or others, unless said action is filed within two (2) years from the date of the act, omission or neglect complained of.

Ind. Code § 34-4-19-1 (1976) (emphasis supplied).

Indiana courts have expressly...