Dermatology Assocs., P.C. v. White

• Decision Date: 19 January 2017
• Docket Number: Court of Appeals Case No. 49A02-1512-PL-2189
• Parties: DERMATOLOGY ASSOCIATES, P.C. and Sonya Campbell Johnson, M.D., Appellants–Petitioners, v. Elizabeth C. WHITE, Appellee–Respondent, v. Commissioner of Indiana Department of Insurance, and Douglas J. Hill, Esq., Medical Review Panel Chair, Third Party Defendants.
• Court: Indiana Appellate Court

67 N.E.3d 1173

DERMATOLOGY ASSOCIATES, P.C. and Sonya Campbell Johnson, M.D., Appellants–Petitioners,

v.Elizabeth C. WHITE, Appellee–Respondent,

v.Commissioner of Indiana Department of Insurance, and Douglas J. Hill, Esq., Medical Review Panel Chair, Third Party Defendants.

Court of Appeals Case No. 49A02-1512-PL-2189

Court of Appeals of Indiana.

January 19, 2017

Attorneys for Appellants Chad J. Bradford, O'Bryan, Brown and Toner, PLLC, Indianapolis, Indiana, Karl L. Mulvaney, Jessica Whelan, Bingham Greenebaum Doll LLP, Indianapolis, Indiana

Attorney for Appellee Gerald B. Coleman, Coleman Stevenson, LLP, Indianapolis, Indiana

Robb, Judge.

Case Summary and Issue

[1] On September 7, 2012, Elizabeth White visited Dr. Sonya Campbell Johnson at Dermatology Associates, P.C. (collectively, the "Providers"), for laser hair removal on her face. Due to a reaction between the makeup White was wearing and the treatment, part of White's face was burned and remained discolored thereafter. In 2013, White filed a complaint for medical negligence against the Providers directly with the trial court, seeking damages in an amount not greater than $15,000 for her injury. Later, White moved to dismiss that complaint. The trial court granted the motion to dismiss without prejudice, and on November 18, 2014, White filed a proposed complaint with the Indiana Department of Insurance. The Providers filed a petition for preliminary determination and a motion for summary judgment alleging White failed to timely file her claim with the Department of Insurance. The trial court denied the motion for summary judgment but certified its order for interlocutory appeal. The Providers raise one restated issue for our review: whether the trial court erred in denying their motion for summary judgment. Concluding the statute of limitations bars White's action and the Providers are entitled to judgment as a matter of law, we reverse.

Facts and Procedural History

[2] White went to the offices of Dermatology Associates on September 7, 2012, for a laser hair removal procedure on her face. A few minutes after Dr. Johnson began performing the procedure, she stopped and asked if White had anything on her face. White replied that she was wearing mineral powder, and Dr. Johnson said the laser reacts to minerals. Dr. Johnson cleansed White's face and completed the procedure. The part of White's face that had been in contact with the laser prior to the cleansing immediately discolored, but Dr. Johnson said the discoloration would go away by the end of the day. Instead, the discoloration worsened and White's skin peeled. Over time, the discoloration improved but did not completely go away.

[3] On November 20, 2013, White filed a complaint for medical negligence in the Marion Superior Court 14, alleging the Providers were negligent in performing the laser hair removal. On December 12, 2013, White filed a motion for leave to amend her complaint to add a declaration that she was seeking damages in an amount not greater than $15,000.¹ The trial court granted her motion and her amended complaint was filed.

[4] In October 2014, the Providers filed a motion for summary judgment. White did not respond to the motion for summary judgment but instead filed a motion to dismiss her complaint without prejudice because she "has learned during the pendency of her action that her bodily injury is more serious than previously believed ... and therefore believes that Fifteen Thousand and 00/100 Dollars ($15,000.00) will be insufficient compensation for her bodily injury." Appellants' Appendix at 84. Attached to her motion was her affidavit, stating in pertinent part:

2. On September 7, 2012, I went to the offices of the [Providers] to have a laser hair removal procedure performed by [Dr. Johnson].

3. [Dr. Johnson] performed the procedure in a negligent manner resulting in injury burning to my face.

4. I experienced immediate discoloring and burning. I thought the discoloring would disappear; however, discoloring still remains and therefore, I do not believe that [$15,000] is sufficient to compensate me for the injury to my face.

5. I have asked my attorney to take the necessary steps so that I can pursue additional monetary damages to compensate me for my injury.

Id. at 88. The trial court granted White's motion to dismiss her complaint on November 12, 2014.

[5] On November 18, 2014, White filed a proposed complaint with the Indiana Department of Insurance, which was identical in all respects to the amended complaint she had filed in the trial court minus the limited damages declaration. On June 4, 2015, the Providers filed a Petition for Preliminary Determination and Motion for Summary Judgment in Marion Superior Court 10, alleging White's proposed complaint before the Department of Insurance was untimely. The trial court denied the motion for summary judgment on June 19, 2015. The Providers then filed a motion to reconsider, and, in the alternative, a motion to certify the order denying summary judgment for interlocutory appeal. Following a hearing, the trial court denied the Providers' motion to reconsider but certified the order denying summary judgment for interlocutory appeal.

Discussion and Decision

I. Standard of Review

[6] Pursuant to Indiana Code section 34–18–11–1, a trial court may assert jurisdiction over threshold issues and preliminarily determine an issue of law or fact while the proposed complaint is pending before the medical review panel in the Department of Insurance. Haggerty v. Anonymous Party 1 , 998 N.E.2d 286, 294 (Ind. Ct. App. 2013). The grant or denial of summary judgment on a motion for preliminary determination is subject to the same standard of review as any other summary judgment ruling. Jeffrey v. Methodist Hosps. , 956 N.E.2d 151, 154 (Ind. Ct. App. 2011).

When reviewing the grant or denial of summary judgment, we apply the same standard as the trial court. Summary judgment is proper only when the designated evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. All facts and reasonable inferences therefrom are construed in a light most favorable to the nonmovant. The statute of limitations defense is particularly suitable as a basis for summary judgment. When the moving party asserts the statute of limitations as an affirmative defense 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. Any doubts as to the existence of a material issue are resolved in favor of the nonmovant.

Anonymous Physician v. Wininger , 998 N.E.2d 749, 751 (Ind. Ct. App. 2013) (citations omitted).

II. Timeliness of White's Action

A. Statute of Limitations in General

[7] In general, a patient asserting a medical negligence claim must file her complaint within two years of the alleged malpractice. Ind. Code § 34–18–7–1(b). Except in limited circumstances, medical negligence claims in Indiana must first be submitted to a medical review panel through the Indiana Department of Insurance before they may be filed in court. Ind. Code § 34–18–8–4. The filing of a proposed complaint with the medical review panel tolls the applicable statute of limitations until ninety days following receipt by the patient of the panel's decision. Ind. Code § 34–18–7–3(a) ; Comer v. Gohil , 664 N.E.2d 389, 391 (Ind. Ct. App. 1996), trans. denied . Thus, the failure to file a proposed complaint with the Department of Insurance for consideration by a medical review panel within two years from the date of the alleged malpractice is ordinarily fatal to a medical negligence claim. Mayfield v. Cont'l Rehab. Hosp. , 690 N.E.2d 738, 741 (Ind. Ct. App. 1998), trans. denied.

[8] This case presents several exceptions to the general rules cited above. One of the circumstances in which a claim need not be first presented to a medical review panel is where the patient's pleadings include a declaration that the patient seeks damages of $15,000 or less. Ind. Code § 34–18–8–6(a). In that situation, the case may be commenced directly in the trial court. Id. Indiana Code section 34–18–8–6(b) ("subsection (b)") then provides that a patient who:

(1) commences an action [directly in court] in the reasonable belief that damages in an amount not greater than [$15,000] are adequate compensation for the bodily injury allegedly caused by the health care provider's malpractice; and

(2) later learns, during the pendency of the action, that the bodily injury is more serious than previously believed and that [$15,000] is insufficient compensation for the bodily injury;

may move that the action be dismissed without prejudice and, upon dismissal of the action, may file a proposed complaint subject to [medical review panel proceedings] based upon the same allegations of malpractice as were asserted in the action dismissed under this subsection. In a second action commenced in court following the medical review panel's proceeding on the proposed complaint, the patient may recover an amount greater than [$15,000].

Indiana Code section 34–18–8–6(c) ("subsection (c)") provides an exception to the general two-year statute of limitations for a second action filed under these circumstances, stating that if the patient:

(1) commences an action under subsection (a) ...;

(2) moves under subsection (b) ... for dismissal of that action;

(3) files a proposed complaint subject to [presentation to a medical review panel] based upon the same allegations of malpractice as were asserted in the action dismissed under subsection (b) ...; and

(4) commences a second action in court following the medical review panel proceeding on the proposed complaint;

the timeliness of the second action is governed by IC 34–18–7–1(c).

Indiana Code section 34-18-7-1(c) in turn provides that if the patient meets the criteria of subsection (c), "the applicable limitations period is equal to the...