Garneau v. Bush

• Decision Date: 13 December 2005
• Docket Number: No. 12A02-0502-CV-138.,12A02-0502-CV-138.
• Citation: 838 N.E.2d 1134
• Parties: Real and Lise GARNEAU, Appellants, v. Charles E. BUSH, Jr., M.D., Appellee.
• Court: Indiana Supreme Court

838 N.E.2d 1134

Real and Lise GARNEAU, Appellants, v. Charles E. BUSH, Jr., M.D., Appellee.

No. 12A02-0502-CV-138.

Court of Appeals of Indiana.

December 13, 2005.

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Rex E. Baker, Caroline A. GiLchrist, Baker & Gilchrist, Avon, for Appellants.

Robert G. Zeigler, Bobby J. Avery-Seagrave, Zeigler Cohen & Koch, Indianapolis, for Appellee.

OPINION

MATHIAS, Judge.

Real and Lise Garneau ("the Garneaus") appeal from the Carroll Circuit Court's grant of summary judgment in favor of Charles E. Bush, Jr., M.D. ("Dr. Bush") on their claim for medical malpractice. They raise the following issue: whether the trial court erred when it found the Garneaus' claim was barred by the statute of limitations. Concluding that the trial court improperly granted summary judgment in favor of Dr. Bush, we reverse and remand for proceedings consistent with this opinion.

Facts and Procedural History¹

On March 16, 1998, Lise Garneau ("Lise") fell and suffered a subcapital fracture of her left hip. She was taken by ambulance to Clinton County Hospital where she was admitted under the care of Dr. Bush, who had previously treated her for other injuries. Lise also suffered from several ongoing health conditions, including Type II diabetes, hypertension, and multiple sclerosis.

Dr. Bush told the Garneaus that Lise needed hip replacement surgery. On March 17, 1998, Dr. Bush performed the surgery and placed a 44-millimeter Austin-Moore prosthesis in Lise's left hip. Lise was later admitted to Rehabilitation Hospital of Indiana, and was discharged from its rehabilitation program on April 11, 1998.

Three days later at her home, Lise fell from her wheelchair and dislocated her replaced left hip, meaning "the head of the prosthesis came out of the socket." Appellant's App. p. 92. Dr. Bush performed a manipulative reduction of Lise's dislocated hip under general anesthesia.

Lise was then admitted to Hook Rehabilitation Center at Lafayette Home Hospital. On April 17, 1998, three days after the first dislocation, Lise's left hip dislocated again. Dr. John Gossard ("Dr. Gossard"), a physician at the rehabilitation center, consulted with the Garneaus and noted:

I have discussed the situation with her and her husband. The dislocation needs to be reduced under a general anesthesia. At that time, examination can be done to determine its intrinsic stability, as well as AP and surgical lateral x-rays of the hip. I have told her and her husband that if the prosthesis is intrinsically unstable, that another operative procedure might be necessary. They are agreeable to the procedure as proposed.

Appellant's App. p. 946.

Dr. Gossard performed a second reduction on Lise's left hip on April 18, 1998. Lise was then transferred back to the rehabilitation center, and she remained in a brace for approximately six weeks. On May 11, 1998, Lise was transferred to a nursing home in Frankfort. An x-ray taken on June 11, 1998, revealed that the hip prosthesis was stable. Appellant's App. p. 388. The prosthetic hip did not dislocate again, but Lise continued to suffer from hip pain and was unable to bear weight on her left leg.

Lise remained in the nursing home for more than eight months, until January 29, 1999. During that time, Dr. Bush continued to treat her hip pain. Specifically, Dr. Bush prescribed pain medications and ordered x-rays, evaluations, physical therapy, and ambulation for Lise.

After her discharge from the nursing home, Lise continued to treat with Dr. Bush for ongoing pain in her hip. Real Garneau ("Real") called Dr. Bush in July 1999 regarding Lise's continuing hip pain.² Dr. Bush prescribed more pain medication and ordered another x-ray. An x-ray taken on July 28, 1999, revealed some loosening of the prosthesis. Appellant's App. p. 99. Dr. Bush testified in his deposition that the loosening of the prosthesis could account for Lise's hip pain. Id. However, Dr. Bush continued to treat Lise's hip pain with medication. On September 14, 1999, Real called Dr. Bush again because of Lise's ongoing, sometimes severe, hip pain. As a result, Dr. Bush ordered another x-ray of Lise's hip.

On September 30, 1999, Dr. Bush referred Lise to an orthopedic surgeon, Dr. John Crane ("Dr.Crane"). Dr. Crane removed the Austin-Moore prosthesis and replaced it with a new bipolar prosthesis on November 8, 1999. After the second hip replacement, Lise experienced another dislocation requiring revision. Appellant's App. p. 929. She was then admitted to Healthsouth Rehabilitation Hospital in Kokomo on December 22, 1999. Id. at 968. While there, Lise underwent physical and occupational therapy, and made "slow, continuous progress throughout her rehabilitative stay." Id.

Specifically, the record reflects that on December 23, 1999, Lise's physician at the rehabilitation hospital, Dr. Robert Trout ("Dr.Trout"), noted that Lise "denied new complaints today, except for some left foot pain" and that her "pain [was] controlled well with present medications." Id. at 972. Dr. Trout's notes from December 27, 1999, indicate that Lise was able to "ambulate the length of the parallel bars three times earlier" that day and that she experienced "some limitations in therapies" due to discomfort from her brace and some left foot pain, but made no mention of hip pain. Id. at 971. On January 28, 2000, Lise had a follow-up appointment with Dr. Paul D. Ruesch ("Dr. Ruesch"), who recommended she discontinue use of her brace, but made no notes regarding any hip pain. Id. at 965. On March 8, 2000, Lise had another follow-up with Dr. Ruesch, who noted "she has no complaints of pain with respect to her hip at this point." Id. at 964.

On August 28, 2000, the Garneaus filed their Proposed Complaint for Damages against Dr. Bush with the Indiana Department of Insurance, alleging that Dr. Bush's treatment of Lise was negligent and breached the appropriate standard of care for orthopedic surgery.

On January 28, 2004, Dr. Bush filed a motion for summary judgment, contending that the Garneaus' complaint was barred by the two-year medical malpractice statute of limitations. In response, the Garneaus filed a Designation of Material Fact in Opposition to Defendant's Motion for Summary Judgment. The Garneaus' designated evidence included Dr. Bush's deposition, in which he testified that he had graduated from Indiana University School of Medicine in 1955. After completing the first year of a four-year surgical and orthopedic residence in Lexington, Kentucky, Dr. Bush left the residency program to set up a general practice in Frankfort, Indiana, where he has practiced since. Dr. Bush also testified in the deposition that the surgical and orthopedic techniques that he used in performing Lise's hip replacement were the same ones he had learned in the 1950s. Appellant's App. p. 90.

The Garneaus' designated evidence also included an affidavit from Dr. Robert Colyer ("Dr. Colyer"), a board-certified orthopedic surgeon and Associate Professor in the Department of Orthopedic Surgery at Indiana University Hospital. Dr. Colyer averred that Dr. Bush's use of an obsolete Austin-Moore prosthesis, as well as his failure to recommend revision of the prosthesis after Lise continued to suffer hip pain six months post-surgery, were breaches of the appropriate standard of care. Appellant's App. pp. 49-51.

The trial court heard oral argument on the summary judgment motion on December 21, 2004, and later granted summary judgment in favor of Dr. Bush. The Garneaus now appeal.

Standard of Review

Summary judgment is a procedural means to halt litigation when there are no factual disputes and to allow the case to be determined as a matter of law. Langman v. Milos, 765 N.E.2d 227, 233 (Ind.Ct.App.2002), trans. denied (citing LeBrun v. Conner, 702 N.E.2d 754, 756 (Ind.Ct.App. 1998)). Under Indiana Trial Rule 56, the moving party bears the burden of showing that there are no genuine issues of material fact. If the moving party meets its burden, the burden shifts to the non-moving party to set forth facts showing the existence of a genuine issue for trial. Id.; Oelling v. Rao, 593 N.E.2d 189, 190 (Ind. 1992).

Summary judgment is appropriate only if there is no evidence of a genuine issue of material fact for trial and the moving party is entitled to judgment as a matter of law. Langman, 765 N.E.2d at 233 (citing Aide v. Chrysler Fin. Corp., 699 N.E.2d 1177, 1180 (Ind.Ct.App.1998), trans. denied.) However, summary judgment is inappropriate if any material facts are in dispute or even if undisputed facts could "lead to conflicting material inferences." Id. at 233-34 (quoting Butler v. City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind. 1996)).

When the moving party asserts the statute of limitations as an affirmative defense and establishes that the action was commenced outside of the statutory period, the burden shifts to the non-moving party to establish an issue of fact material to a theory that avoids the affirmative defense. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind.2000).

Discussion and Decision

The Garneaus contend that the trial court improperly granted summary judgment in favor of Dr. Bush on the basis that their complaint for medical malpractice was not timely filed. They allege that issues of material fact exist as to whether the statute of limitations was tolled by the doctrine of fraudulent concealment, as to whether the statute of limitations was tolled by the doctrine of continuing wrong, and as to alleged acts of negligence that occurred within two years of the filing of their complaint.

I. Statute of Limitations

The statute of limitations for medical malpractice claims is contained in Indiana Code section 34-18-7-1(b):

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...