David v. Kleckner

• Decision Date: 28 May 2014
• Docket Number: No. 49S02–1405–MI–355.,49S02–1405–MI–355.
• Citation: 9 N.E.3d 147
• Parties: Larry Robert DAVID, II, As Special Administrator Of The Estate of Lisa Marie David, Deceased, Appellant (Respondent), v. William KLECKNER, M.D., Appellee (Petitioner).
• Court: Indiana Supreme Court

9 N.E.3d 147

Larry Robert DAVID, II, As Special Administrator Of The Estate of Lisa Marie David, Deceased, Appellant (Respondent),

v.William KLECKNER, M.D., Appellee (Petitioner).

No. 49S02–1405–MI–355.

Supreme Court of Indiana.

May 28, 2014.

Recognized as Unconstitutional

West's A.I.C. 34-18-7-1(b)Mark D. Gerth, Donald L. Dawson, Kightlinger & Gray, LLP, Indianapolis, IN, Attorneys for Appellant.

David D. Becsey, Zeigler Cohen & Koch, Indianapolis, IN, Attorney for Appellee.

On Transfer from the Indiana Court of Appeals, No. 49A02–1301–MI–13

DICKSON, Chief Justice.

This appeal challenges a summary judgment in a wrongful death medical malpractice case brought by the deceased patient's husband as administrator of her estate. The defendant physician sought summary judgment on grounds that the plaintiff's complaint was barred by the applicable statute of limitations. The trial court granted the motion and, finding no reason for delay, entered final judgment against the plaintiff. The Court of Appeals affirmed in a memorandum decision. David v. Kleckner, No. 49A02–1301–MI–13, 989 N.E.2d 843 (Ind.Ct.App. June 14, 2013) (table). We now grant transfer and reverse the trial court.

In its review of a summary judgment, an appellate court applies the same standard as the trial court. Overton v. Grillo, 896 N.E.2d 499, 502 (Ind.2008). Summary judgment may be granted, or affirmed on appeal, only “if the designated evidentiary matter shows 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.” Ind. Trial Rule 56(C). All facts and reasonable inferences established by the designated evidence are to be construed in favor of the non-moving party. Overton, 896 N.E.2d at 502. When a medical malpractice defendant asserts the statute of limitations as an affirmative defense, that defendant “bears the burden of establishing that the action was commenced beyond that statutory period.” Id. If established, the burden shifts to the plaintiff to establish “an issue of fact material to a theory that avoids the defense.” Id. (quoting Boggs v. Tri–State Radiology, Inc., 730 N.E.2d 692, 695 (Ind.2000)).

In response to the defendant's motion for summary judgment, the plaintiff argued in the trial court, and argues on appeal, that (a) the complaint was filed within a reasonable time after the plaintiff discovered the malpractice and (b) the statute of limitations was tolled under the doctrine of fraudulent concealment, and the complaint was filed within a reasonable time after the concealment ceased.¹

Dr. William Kleckner was the family physician for Lisa David, the plaintiff's decedent, for approximately ten years until the time of her death on March 25, 2011. During her annual physical on November 24, 2008, Dr. Kleckner conducted a routine pap smear, the results of which indicated abnormalities. A second pap smear was conducted two months later, on January 28, 2009, which also detected abnormalities. The pathologist reviewing the second pap smear submitted a report to Dr. Kleckner stating “[e]ndocervical and endometrial biopsy is recommended if clinically indicated.” Appellant's App'x at 270. On February 27, 2009, Dr. Kleckner performed an endometrial biopsy, but not an endocervical biopsy. The performed endometrial biopsy was negative for signs of cancer or other medical conditions. At Dr. Kleckner's direction, his medical assistant contacted Lisa on March 13, 2009, and told her, among other things, “All okay,” “Looks fine,” and “Came back clear.” Id. at 31, 68, 231. No endocervical biopsy was ever performed, however, and Lisa was never told of the pathologist's recommendations regarding an endocervical biopsy. In the next five months, Lisa began to experience genital pain, discomfort, and bleeding. She saw a specialist in obstetrics and gynecology, Dr. Keith Bean, on September 1, 2009, although the parties dispute whether this was at the referral of Dr. Kleckner. Dr. Bean examined Lisa and detected a mass on Lisa's cervix, and on September 3, 2009, Dr. Bean's office informed Lisa that the mass was a cancerous tumor. The plaintiff contends, and Dr. Kleckner denies, that approximately one week after receiving this news, Dr. Kleckner assured Lisa that no tumor was present when he examined her on February 27, 2009–the date he performed the endometrial biopsy. Shortly after the discovery of her cervical tumor, Lisa began treatment for her cancer. Unfortunately, the treatmentwas not successful, and Lisa died on March 25, 2011.

It was in “mid to late February, 2011,” that Lisa's husband, Larry David, “became suspicious of why Dr. Kleckner hadn't found any evidence of cancer or a tumor when he had last seen Lisa.” Id. at 184. He consulted an attorney who provided medical information releases that Lisa signed and which enabled Larry on February 25, 2011, to obtain Dr. Kleckner's medical records, which he gave to the attorney for review by medical experts. Larry states that it was not until after Lisa's death on March 25, 2011, that he learned “Dr. Kleckner had not performed the recommended endocervical biopsy.” Id. at 185. On July 1, 2011, three months and seven days after Lisa's death, the estate commenced this action by filing its proposed complaint for damages with the Department of Insurance. Id. at 30. The complaint alleged that Dr. Kleckner negligently failed to perform the recommended endocervical biopsy and that this mistake led to a late diagnosis of Lisa's cancer, resulting in a diminution in her chances of receiving effective treatment and ultimately her death. Id. at 32–33. The proposed complaint was filed more than 28 months after Dr. Kleckner allegedly failed to perform the endocervical biopsy.

Dr. Kleckner's motion for summary judgment is based on the statute of limitations under the Indiana Medical Malpractice Act which provides in relevant part:

A claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect....

Ind.Code § 34–18–7–1(b).

Subsequent case law, however, has ameliorated the harsh effects resulting from literally applying this provision to prohibit every malpractice action commenced more than two years after the actual occurrence of the alleged act of medical negligence. In Martin v. Richey, 711 N.E.2d 1273 (Ind.1999), we reversed a summary judgment based on the medical malpractice statute of limitations where the plaintiff alleged medical negligence in the failure to diagnose and treat breast cancer. She first learned of the cancer three years later and commenced her action within the next six months. This Court found the occurrence based statute of limitations unconstitutional as applied:

Stated another way, the medical malpractice statute of limitations is unconstitutional as applied when plaintiff did not know or, in the exercise of reasonable diligence, could not have discovered that she had sustained an injury as a result of malpractice, because in such a case the statute of limitations would impose an impossible condition on plaintiff's access to courts and ability to pursue an otherwise valid tort claim. To hold otherwise would be to require a plaintiff to bring a claim for medical malpractice before becoming aware of her injury and damages, an essential element of any negligence claim, and this indeed would be boarding the bus to topsy-turvy land.

Id. at 1284 (footnote omitted). In Van Dusen v. Stotts, a companion case to Martin, we announced the general rule that persons “unable to discover the malpractice and their resulting injury within the two-year statutory period” may “file their claims within two years of the date when 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 491, 497 (Ind.1999). Ensuing decisions of this Court, however, present arguably incongruent views regarding the general rule allowing a plaintiff an opportunity, in the exercise of reasonable diligence, to discover malpractice.

The following year, this Court addressed the application of Richey and Van Dusen to a medical malpractice claim alleging medical negligence regarding the detection of breast cancer. We affirmed summary judgment applying the two-year statutory limitation period, explaining:

[The plaintiff and plaintiff's decedent] had an 11–month window to file a medical malpractice claim after knowledge of the injury, yet did not. We hold that as long as the statute of limitations does not shorten this window of time so unreasonably that it is impractical for a plaintiff to file a claim at all ... it is constitutional as applied to that plaintiff.

Boggs, 730 N.E.2d at 697. Five years later, in Booth v. Wiley, we synthesized the holdings in Martin,Van Dusen, and Boggs as follows:

Initially, a court must determine the date the alleged malpractice occurred and determine the discovery date—the date when the claimant discovered the alleged malpractice and resulting injury, or possessed enough information that would have led a reasonably diligent person to make such discovery. If the discovery date is more than two years beyond the date the malpractice occurred, the claimant has two years after discovery within which to initiate a malpractice action. But if the discovery date is within two years following the occurrence of the alleged malpractice, the statutory limitation period applies and the action must be initiated before the period expires, unless it is not reasonably possible for the claimant to present the claim in the time remaining after discovery and before the end of the statutory period. In such cases where discovery occurs before the statutory deadline but there is...