David v. Kleckner
| Decision Date | 14 June 2013 |
| Docket Number | No. 49A02–1301–MI–13.,49A02–1301–MI–13. |
| Citation | 989 N.E.2d 843 |
| 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 Appellate Court |
OPINION TEXT STARTS HERE
Appeal from The Marion Superior Court; The Honorable Timothy W. Oakes, Judge; Cause No. 49D13–1208–MI–30944.
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.
Larry David, II, special administrator of the Estate of Lisa Marie David (“the Estate”), appeals the trial court's grant of summary judgment to William Kleckner, M.D. We affirm.
The Estate raises two issues, which we restate as:
I. whether the Estate's medical malpractice claim against Dr. Kleckner was barred by the statute of limitations; and
II. whether the doctrine of fraudulent concealment bars Dr. Kleckner from asserting the statute of limitations defense.
Lisa was a patient of Dr. Kleckner, who is a family physician. In November 2008, as part of Lisa's annual examination, Dr. Kleckner performed a pap smear, and the cells were sent to a pathologist for evaluation. The pathologist's report, which was sent to Dr. Kleckner, revealed an “Epithelial cell Abnormality—Glandular” with a descriptive diagnosis of “Atypical endocervical cells.” App. p. 282. Dr. Kleckner performed a repeat pap smear on January 28, 2009. The pathologist again found an “Epithelial cell Abnormality—Glandular” with a descriptive diagnosis of “Atypical endometrial cells.” Id. at 283. The pathologist commented that an “[e]ndocervical and endometrial biopsy is recommended if clinically indicated.” Id.
On February 27, 2009, Dr. Kleckner performed an endometrial biopsy on Lisa, but he did not perform an endocervical biopsy. The pathologist found “no evidence of carcinoma, hyperplasia, or atypia” in the endometrial biopsy. Id. at 271. Dr. Kleckner had his assistant call Lisa and inform her that “all [was] OK” and direct Lisa to “call if any spotting or other gyn problems” occur. Id. Dr. Kleckner's assistant called Lisa on March 13, 2009.
In August 2009, Lisa developed abdominal pain and vaginal bleeding. She scheduled an appointment with a gynecologist, Dr. Keith Bean, for September 1, 2009. Dr. Bean's records reflect that Lisa was referred to his office by Dr. Kleckner. Dr. Bean found a mass on Lisa's cervix and performed an endocervical biopsy. The pathologist found that the mass was “Invasive moderate to poorly differentiated adenosquamous cell carcinoma.” Id. at 272. Dr. Bean informed Lisa of the diagnosis on September 3, 2009. On September 11, 2009, Lisa spoke with Dr. Kleckner, who told Lisa there was no tumor present on February 27, 2009.
Lisa obtained treatment, which included radiation and chemotherapy, at the Indiana University Cancer Center. On December 16, 2009, Lisa was told that her cervix looked normal and that the tumor was gone. However, a pap smear in March 2010 revealed abnormal cells again. Lisa had a hysterectomy in April 2010. Another pap smear in August 2010 again revealed abnormal cells, and Lisa started another course of radiation and chemotherapy. However, the treatments were unsuccessful, and Lisa died on March 25, 2011. After Lisa died, her husband, Larry, learned that the pathologist had recommended an endocervical biopsy in February 2009, but that Dr. Kleckner did not perform the biopsy.
The Estate filed a proposed medical malpractice complaint against Dr. Kleckner with the Department of Insurance on July 1, 2011. On August 7, 2012, Dr. Kleckner filed a motion for preliminary determination and a motion for summary judgment, alleging that the Estate's claim was barred by the statute of limitations. The trial court granted Dr. Kleckner's motion for summary judgment. The Estate now appeals.
The Estate argues that the trial court erred by finding its medical malpractice claim against Dr. Kleckner was barred by the statute of limitations. 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. Boggs v. Tri–State Radiology, Inc., 730 N.E.2d 692, 695 (Ind.2000). 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. Id; Ind. Trial Rule 56(C). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Boggs, 730 N.E.2d at 695. “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.” Id.
The Indiana Medical Malpractice Act's two-year statute of limitations runs from the date of the negligent act or omission. Ind.Code § 34–18–7–l(b); Herron v. Anigbo, 897 N.E.2d 444, 448 (Ind.2008). Our supreme court has concluded that this occurrence-based limitations period is constitutional on its face. Herron, 897 N.E.2d at 448 (citing Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 403–04, 404 N.E.2d 585, 603–04 (1980)). However, in Martin v. Richey, 711 N.E.2d 1273, 1279 (Ind.1999), our supreme court held “that the statute denied any remedy and therefore violated the Indiana Constitution if applied to bar the claim of a patient who could not reasonably be expected to learn of the injury within the two-year period.” Herron, 897 N.E.2d at 448. The court “later held that the same applies to a patient who knows of the injury but is unable in exercise of ‘reasonable diligence’ to attribute it to malpractice.” Id. (quoting Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind.2005)).
In Herron, the court described the time at which a patient “either (1) knows of the malpractice and resulting injury or (2) learns of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury” as the “trigger date.” Id. at 448–49. A plaintiff whose trigger date is after the original limitations period has expired may institute a claim for relief within two years of the trigger date. Id. at 449. If the trigger date is “within two years after the date of the alleged malpractice, the plaintiff must file before the statute of limitations has run if possible in the exercise of due diligence.” Id. Finally, “[i]f the trigger date is within the two-year period but in the exercise of due diligence a claim cannot be filed within the limitations period, the plaintiff must initiate the action within a reasonable time after the trigger date.” Id. Like many legal issues turning on “reasonable” conduct, the determination of the trigger date may raise issues of fact but often may be resolved as a matter of law. Id. at 450. “The trigger date becomes a matter of law when it is clear that the plaintiff knew, or should have known, of the alleged symptom or condition, and facts that in the exercise of reasonable diligence would lead to discovery of the potential of malpractice.” Id.
The Estate argues that it did not discover Dr. Kleckner's alleged negligence until after Lisa's March 2011 death and that the trigger date was when it learned of Dr. Kleckner's failure to perform the endocervical biopsy. Thus, according to the Estate, its July 2011 complaint was filed within two years of the trigger date. Dr. Kleckner argues that the statute of limitations began to run on February 27, 2009, when Dr. Kleckner failed to perform the endocervical biopsy. Further, Dr. Kleckner argues that the trigger date was September 3, 2009, when Lisa learned that she had endocervical cancer. According to Dr. Kleckner, because the trigger date was prior to the expiration of the occurrence-based limitations period, the claim is barred because the complaint was not filed by February 27, 2011.
In Overton v. Grillo, 896 N.E.2d 499 (Ind.2008), our supreme court addressed a similar issue. There, Christine Overton had a routine mammogram on July 7, 1999, and Dr. Marshall Grillo found that the mammogram was normal. However, on October 2, 2000, Overton was diagnosed with breast cancer that had metastasized to the lymph nodes. She learned for the first time on October 11, 2001, of the possibility of negligence regarding Dr. Grillo's interpretation of the July 1999 mammogram. She filed a medical malpractice suit against Dr. Grillo on October 19, 2001.
The trial court granted summary judgment to Dr. Grillo based on the statute of limitations. On appeal, our supreme court held that the trigger date was October 2, 2000, when Overton learned that she had cancer. “[A]lthough no professional had advised the Overtons of possible malpractice, the metastasized cancer brought to light the potential that the earlier mammogram had been misread.” Overton, 896 N.E.2d at 504. “A plaintiff need not be advised of the possibility of malpractice where it should be obvious that it might be present.” Id. at 503. Because the trigger date was within two years after the date of the alleged malpractice, Overton was required to file her claim before July 7, 2001, if possible in the exercise of due diligence. In October 2000, Overton had nine months remaining in the limitations period to file her claim, but she did not file her claim until October 2001. The court rejected Overton's argument that she was incapacitated due to the cancer treatments and unable to file within that time period. Because she did not file her claim until October 2001, her claim was barred by the statute of limitations.
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David v. Kleckner
...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 cou......