Colbert v. Waitt
Decision Date | 28 June 1982 |
Docket Number | No. 4-182A1,4-182A1 |
Citation | 445 N.E.2d 1000 |
Parties | Bonnie J. COLBERT and Oscar Colbert, Appellants (Defendants Below), v. Paul WAITT, M.D. and Joe R. Lloyd, M.D., Appellees (Plaintiffs Below). |
Court | Indiana Appellate Court |
Bonnie Colbert and Oscar Colbert, her husband, appeal from a summary judgment granted in favor of Dr. Paul Waitt and Dr. Joe Lloyd in a medical malpractice action. On appeal they argue that the statute of limitations should be construed as a discovery rule rather than an occurrence rule and that a genuine issue of material fact existed as to whether the running of the statute of limitations was tolled by the doctrine of constructive fraudulent concealment.
We affirm.
In late December 1977 and January of 1978, Bonnie Colbert sought medical treatment from Dr. Waitt as well as Dr. Lloyd. On January 20, 1978, the doctors performed a hysterectomy on Mrs. Colbert at Riverview Hospital. Following this surgery, Mrs. Colbert had several complications and improved only briefly. On March 1, 1978, two of her renal function studies showed abnormal findings. Because she and her family were unhappy with her lack of progress, they decided to have her transferred to the Indiana University Medical Center to Dr. Madura's care. Dr. Madura had earlier performed a small bowel bypass surgery on her. The last time either Dr. Waitt or Dr. Lloyd saw Mrs. Colbert was on March 4, 1978 when she was transferred to Dr. Madura's care at the Medical Center. On March 10, 1978, Dr. Madura performed additional surgery on Mrs. Colbert to remove pus underneath her liver which was caused by a large infection developing after her January 1978 surgery. At the Medical Center Mrs. Colbert also underwent tests for her kidneys, lungs, and heart. She learned that things were not exactly as they should be and that crystalization was forming in her kidneys. She was given medication for her kidneys and a kidney specialist was consulted. Nevertheless, she did not feel the doctors were concerned about her kidneys although they did have a kidney machine nearby in case she needed it following the March 10th surgery. Interns suggested that the kidney problems were a result of the infection which developed after the hysterectomy surgery. On April 4, 1978, Mrs. Colbert was released. However, in October 1978, she learned that she had acute and chronic renal failure. She did not learn the exact cause of this problem until some time later. On September 23, 1980, Oscar and Bonnie Colbert filed a proposed complaint with the insurance commission alleging that Dr. Waitt and Dr. Lloyd were negligent in their medical treatment of her. Pursuant to Ind.Code 16-9.5-10-1 each party thereafter filed a motion with the court for preliminary determination of the law on the issue of the statute of limitations defense. After the trial court considered the affidavits and Mrs. Colbert's published deposition, the court entered summary judgment 1 in favor of the doctors on this issue.
The alleged malpractice in this case occurred in January 1978. The applicable limiting statute is I.C. 16-9.5-3-1:
No claim, whether in contract or tort, may be brought against a health care provider based upon professional services or health care rendered or which should have been rendered unless filed within two years from the date of the alleged act, omission or neglect ....
The language of the statute is not ambiguous in stating that it is an occurrence rule rather than a discovery rule. Alwood v. Davis, (1980) Ind.App., 411 N.E.2d 759 ( ). Like the earlier malpractice act it does not say "within two years from the date of discovery of the act, omission or neglect complained of." Id. We cannot reasonably construe the language used as a discovery rule. Alwood, supra. See also Carrow v. Streeter, (1980) Ind.App., 410 N.E.2d 1369. The two year period begins to run from the date of the act, omission or neglect complained of. 2
The Colberts also contend that genuine issues of material fact exist regarding the running of the statute of limitations, specifically whether the doctrine of constructive fraudulent concealment tolled the running of the statute of limitations until two years before their suit was filed. The Colberts claim the physician-patient relationship did not terminate until October 1978, the day she learned of her complete renal failure. Moreover, Mrs. Colbert argues she did not learn and could not have learned of the doctors' malpractice until the time she later learned the doctors' treatment caused her renal failure. Dr. Waitt argues that his physician-patient relationship ended after surgery was performed and she was transferred to the Medical Center under Dr. Madura's care on March 3, 1978. Dr. Lloyd counters that the doctrine of constructive fraudulent concealment no longer exists and, even assuming it does, his physician-patient relationship had also terminated on March 3, 1978. Furthermore, Mrs. Colbert knew or should have known that the alleged malpractice occurred more than two years prior to filing her complaint; thus summary judgment was proper.
Before we address whether summary judgment was properly entered, we note that the doctrine of fraudulent concealment is as applicable to the statute of limitations defense under I.C. 16-9.5-3-1 as it was to the statute of limitation defense based upon the former medical malpractice act. 3 See, Guy v. Schuldt, (1956) 236 Ind. 101, 138 N.E.2d 891. This doctrine is not based upon a construction of the statute. Rather, the doctrine is predicated on the principle of estoppel that one who by deception or any violation of duty towards the plaintiff, conceals material facts and thereby prevents the discovery of the wrong, should not be permitted to take advantage of his own deceit or concealment by asserting the statute of limitations. Guy, supra. The doctrine is not an "exception" to the rule of our malpractice limitation statute, but constitutes an equitable estoppel which precludes certain defendants from asserting the statutory bar. Bronckhorst v. Taube, (1976) 168 Ind.App. 132, 341 N.E.2d 791. Before the doctrine of estoppel may be used to bar the defendant's use of the statute of limitations, the fraud must be of such character as to prevent inquiry, or to elude investigation, or to mislead the party who claims the cause of action. Guy, supra 138 N.E.2d at 894.
Two types of conduct by a physician can invoke this equitable doctrine to toll the statute of limitations. Carrow, supra at 1374. The fraud may be active because of some affirmative effort to conceal the cause of action 4, or the fraud may be passive because of the existence of an affirmative duty to disclose material information resulting from a fiduciary or confidential relationship, such as the physician-patient relationship. Id. Where the duty to inform exists by reason of a confidential relationship the duty to inform is terminated when that relationship is terminated. Guy, supra, 138 N.E.2d at 895. Concealment then ceases to exist because the patient then has full opportunity for discovery and there is no longer reliance by the patient nor a corresponding duty of the physician to advise or inform. Id. The statute of limitations begins to run. 5
The trial court granted summary judgment, finding, as a matter of law, that both doctors' physician-patient relationships had terminated more than two years before the filing of this lawsuit. In reviewing this decision, we recognize that summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, disclose that no genuine issues as to any material fact exists and that the moving party is entitled to judgment as a matter of law. Ind.Rules of Procedure, Trial Rule 56(C); Carrow, supra at 1373. Summary judgment is improper if different inferences can be drawn from undisputed facts. Carrow, supra at 1373. To be considered genuine for summary judgment purposes a material issue of fact must be established by sufficient evidence supporting the claimed factual dispute to require a judge or jury to...
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