Conard v. Waugh

• Decision Date: 14 February 1985
• Docket Number: No. 4-484A93,4-484A93
• Citation: 474 N.E.2d 130
• Parties: B.T. CONARD, M.D., Appellant (Defendant Below), v. Albert D. WAUGH, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 130

474 N.E.2d 130

B.T. CONARD, M.D., Appellant (Defendant Below), v. Albert D. WAUGH, Appellee (Plaintiff Below).

No. 4-484A93.

Court of Appeals of Indiana Fourth District.

Feb. 14, 1985.

Joe Tipton, Edna M. Koch, Dillon & Cohen, Indianapolis, for appellant.

Ronald E. Melichar, Hoffman, Melichar & Luhman, Lafayette, for appellee.

MILLER, Presiding Judge.

The plaintiff-appellee, Albert Waugh, filed a proposed complaint for medical malpractice with the Department of Insurance, naming Lafayette Home Hospital, Inc. as the sole defendant. Ten days later, the statute of limitations ran on Waugh's cause of action. Twenty-six days later, Waugh filed an amended proposed complaint, seeking to make the defendant-appellant, Dr. B.T. Conard, M.D., a defendant in addition to the hospital. ¹ Pursuant to statute, Dr. Conard invoked the jurisdiction of the Tippecanoe Superior Court, requesting a preliminary determination that Waugh's action against him was barred by the statute of limitations. This request was in the form of a motion for summary judgment, which Waugh opposed by arguing that, at a minimum, there existed a genuine issue of material fact as to whether the amended proposed complaint related back to the filing of the original proposed complaint under Ind. Rules of Procedure, Trial Rule 15(C). The court agreed that a factual issue regarding relation back existed and denied Dr. Conard's motion for summary judgment pursuant to Trial Rule 56(C). The court certified its order overruling Dr. Conard's motion, see Appellate Rule 4(B)(6), and this court accepted the interlocutory appeal. We reverse.

FACTS

Patient Waugh's amended proposed complaint for medical malpractice, filed with the Department of Insurance as required by IND.CODE 16-9.5-9-2 (1982), alleged that on February 13, 1981, the plaintiff, then aged 23, was suffering from acute abdominal pain and was taken to the emergency ward at Lafayette Home Hospital in Lafayette, Indiana. There, the defendant, Dr. Conard, examined Waugh and diagnosed him as having the flu. Dr. Conard released Waugh without treatment or medication, instructing him only on treatment of the flu. Three days later, Waugh's condition worsened, and he was taken to the emergency room of another hospital in Lafayette, where he was diagnosed as suffering from acute appendicitis, requiring appendectomy. Waugh's amended complaint alleged Dr. Conard's examination of him on February 13, 1981 was negligent and the proximate cause of damages for which he sought recovery from Dr. Conard and the hospital.

On February 4, 1983, ten days before the running of the two year statute of limitations for medical malpractice, ² Waugh filed his proposed complaint with the Department of Insurance. The original complaint named as the sole defendant Lafayette Home Hospital and alleged the hospital, acting through its agents, employees, and On May 2, 1983, Dr. Conard filed a motion in the Tippecanoe Superior Court for a preliminary determination ³ of his statute of limitations defense, raised by way of a motion for summary judgment. Attached to the motion were the proposed complaint, the amended proposed complaint, and an affidavit sworn by Dr. Conard, stating that his one and only contact with Waugh was in the emergency ward of Lafayette Home Hospital on February 13, 1981. Waugh responded to the doctor's motion with a brief in opposition, arguing the amended proposed complaint related back to the time the original complaint was filed and was, therefore, timely; however, Waugh failed to support his position with any of the materials the trial court could properly consider in its determination of the summary judgment motion. ⁴ On March 15, 1984, the trial court entered an order overruling Dr. Conard's motion for summary judgment. In so doing, the court made the following "findings":

the unnamed physician who treated him, was negligent, apparently on the theory that the treating physician was an agent and employee of the hospital. Upon learning that Dr. Conard was in fact working in the hospital's emergency room as an independent contractor, however, Waugh filed an amended proposed complaint, adding the doctor as a defendant along with the hospital. The amended complaint was filed on March 11, 1983, twenty-six days after the statute of limitations had run.

"11. The plaintiff claims mistake in not timely naming defendant Conard, since (a) he relied on an agency theory; and (b) the original defendant Hospital failed to inform him of the true relationship of the physician involved, i.e., independent contractor.

12. The plaintiff further claims that defendant Hospital, upon receipt of the complaint, would have immediately determined the identity of the unnamed physcial [sic] and brought the matter to his attention."

(R. 75-76) Based on these findings the trial court reached the following "conclusion":

"6. While the Court has no direct evidence concerning the reception of actual notice by defendant Conard or his knowledge of whether he knew or should have known that but for a mistake concerning his identity, [see T.R. 15(C) ] the Court is persuaded by plaintiff's claims as set forth in findings numbered 11 and 12 that in the normal course of events following the service of the original complaint, defendant Conard would have been informed of his alleged acts, his relationship to the original named defendant Lafayette Home Hospital, Inc., and whether or not, but for some mistake, he should have been named as a party defendant and he should not be prejudiced in maintaining a defense on the merits in this cause.

Accordingly, the Court finds that there are genuine issues of fact to be resolved in this matter and cannot find as a matter of law that this cause of action is barred by I.C. 16-9.5-3-1, and the defendant Conard's motion for summary judgment is denied."

(R. 76-77) (emphasis added). Dr. Conard now brings this certified interlocutory appeal. We reverse.

DECISION

Under Trial Rule 56(C), a motion for summary judgment is properly granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In making its determination on these matters, the trial court may not rely on supporting materials other than those in the form intended by Trial Rule 56. 3 W HARVEY, INDIANA PRACTICE Sec. 56.6, at 556 (1970). Thus, statements of fact set forth in a brief filed in support of or in opposition to a motion for summary judgment may not be relied upon by the trial court, Freson v. Combs (1982), Ind.App., 433 N.E.2d 55. When a motion for summary judgment is made and supported by materials contemplated by this rule, the opposing party may not rest on his pleadings, but must set forth specific facts, again, using supporting materials contemplated by Trial Rule 56, which demonstrate that summary judgment is not appropriate. T.R. 56(E); Bell v. Horton (1980), Ind.App., 411 N.E.2d 648. If the opposing party fails to respond in this way, summary judgment, if appropriate, may be entered against him, T.R. 56(E), although the court should not do so as a matter of course, but should examine the supporting materials available to it. T.R. 56(C); see Means v. Indiana Financial Corp. (1981), Ind.App., 416 N.E.2d 896.

The party who moves for summary judgment has the burden of establishing that there exists no genuine issue of material fact, and all doubts and reasonable inferences as to the existence of such an issue are to be resolved in favor of the party opposing the motion. Wallace v. Indiana Insurance Co. (1981), Ind.App., 428 N.E.2d 1361. Nevertheless, in a summary judgment proceeding, when the moving party asserts--as did Dr. Conard in the case before us--the affirmative defense of the statute of limitations and presumptively establishes that defense by placing before the trial court Trial Rule 56(C) materials showing there is no question that the action against him was initiated beyond the limited statutory period, then the burden of establishing the existence of material facts in avoidance of the statute of limitations defense shifts to the opponent of the summary judgment motion. ⁵ Whitehouse v. Quinn (1982), Ind.App., 443 N.E.2d 332, trans pending; see Criss v. Bitzegaio (1981), Ind., 420 N.E.2d 1221. This is true because, in a trial where a statute of limitations defense is at issue, once the party pleading the defense has sustained his burden of proving the action was begun beyond the statutory period, the party relying on facts in avoidance of the limitations defense assumes the burden of proving those facts. See D.E.F. v. E.M. (1977), 173 Ind.App. 274, 363 N.E.2d 1030. Similarly, because the function of the summary judgment device is to limit the issues for trial by foreshadowing the proof that will be adduced at trial and weeding out those issues on which there is no question of fact, when the proponent of a summary judgment motion presumptively establishes his statute of limitations defense, the burden of demonstrating the existence of material facts in avoidance of the defense shifts to the opponent of the motion.

In the case before us, the face of the amended proposed complaint, which added Dr. Conard as a defendant, shows that this action was initiated against Dr. Conard beyond the Medical Malpractice Act's two-year statute of limitations, ⁶ because it is file-stamped March 11, 1983 and alleges the malpractice occurred on or about February 13, 1981. Dr. Conard's supporting affidavit (which must be accepted as true unless controverted by supporting materials filed by plaintiff, see Criss v. Bitzegaio, supra ) demonstrated that his physician-patient relationship with plaintiff began and ended on February 13, 1981; thus, the statute of...