Havens v. Ritchey

• Decision Date: 12 December 1991
• Docket Number: No. 49S04-9112-CV-985,49S04-9112-CV-985
• Citation: 582 N.E.2d 792
• Parties: Clifford Dale HAVENS, Appellant (Plaintiff Below), v. Donald B. RITCHEY, D.P.M. and Harry Eakin, as Commissioner of Insurance for the State of Indiana, Appellees (Defendants Below).
• Court: Indiana Supreme Court

Page 792

582 N.E.2d 792

Clifford Dale HAVENS, Appellant (Plaintiff Below), v. Donald B. RITCHEY, D.P.M. and Harry Eakin, as Commissioner

of Insurance for the State of Indiana, Appellees

(Defendants Below).

No. 49S04-9112-CV-985.

Supreme Court of Indiana.

Dec. 12, 1991.

Michael S. Miller, Mendelson, Kennedy, Miller, Muller & Hall, Indianapolis, for appellant.

Frederick Wm. LaCava and Robert G. Zeigler, LaCava, Zeigler & Carter, Indianapolis, for appellees.

SHEPARD, Chief Justice.

In a medical malpractice action for failure to diagnose, should we recognize the doctrine of continuing wrong as a way to decide statute of limitation questions? We conclude that the idea of continuing wrong may have utility in some situations, but does not operate in this case to make the claim timely.

Plaintiff-appellant Clifford Havens first sought treatment for pain in his right foot from defendant-appellee Dr. Ritchey in July 1984. Ritchey performed surgery on the foot in November 1984, but did not diagnose or treat the dislocation of one of Havens' toes. Havens made several trips to Dr. Ritchey's office over the next few months, continually complaining about pain in the ball of his right foot. Havens' last visit to Ritchey was on July 3, 1985. Ritchey suggested additional surgery; Havens, however, wanted to wait until the fall. Havens was supposed to return to the doctor's office in three months, but he did not do so despite two reminders sent by Ritchey's office.

On October 31, 1985, Havens visited Dr. Atz, who diagnosed Havens' problem as a second metatarsophalengeal dislocation. He performed surgery to correct this problem on November 20, 1985. Havens filed his proposed medical malpractice complaint against Ritchey with the Indiana Department of Insurance on October 14, 1987. Dr. Ritchey asked the Marion Superior Court for a preliminary determination of law and fact, seeking summary judgment in his favor on the basis that Havens had filed his complaint outside of the two-year statutory time period for filing a medical malpractice suit. The trial court granted Dr. Ritchey's motion.

The Court of Appeals reversed, holding a genuine issue of material fact existed regarding when the statute of limitation began to run. Havens v. Ritchey (1991), Ind.App., 566 N.E.2d 1109. We grant Ritchey's petition to transfer and vacate the opinion of the Court of Appeals.

The Indiana General Assembly has enacted a statute of limitation for medical malpractice actions which varies from the standard statute of limitation applicable generally to tort suits. The medical malpractice statute can be contrasted with other statutes of limitation, including the standard statute of limitation for tort actions. Indiana Code Sec. 34-1-2-2(1) (West 1983) provides that an action for injuries to person or character shall be commenced within two years after the cause of action has accrued. The legislature left it for the courts to determine when the cause accrues. ¹ Barnes v. A.H. Robins Co., Inc. (1985), Ind., 476 N.E.2d 84.

The legislature did not confer such an assignment on the courts in medical malpractice actions. The statute of limitation for actions brought under the Medical Malpractice Act is found in Ind.Code Sec. 16-9.5-3-1 (West Supp.1991). This section provides in part: "No claim, whether in contract or tort, may be brought against a health care provider based upon professional services or health care rendered or that should have been rendered unless filed within two (2) years from the date of the alleged act, omission, or neglect...." Ind.Code Sec. 16-9.5-3-1 (emphasis added). This statute of limitation has repeatedly been described as an "occurrence" statute. See, e.g., Cacdac v. Hiland (1990), Ind., 561 N.E.2d 758; Yarnell v. Hurley (1991), Ind.App., 572 N.E.2d 1312; Walters v. Rinker (1988), Ind.App., 520 N.E.2d 468; Frady v. Hedgcock (1986), Ind.App., 497 N.E.2d 620. Because the statute is an occurrence statute, it begins to run on the date of the alleged malpractice. Cacdac, 561 N.E.2d 758.

It is abundantly clear that the legislature intended the statute to begin running upon the act, omission, or neglect of which the plaintiff complains. This conclusion is reached by observing the language of the statute of limitation provision, the general purposes of statutes of limitation, and the statute's specific purpose in the Medical Malpractice Act.

The general purpose of a statute of limitation is to encourage the prompt presentation of claims. Johnson v. St. Vincent Hospital, Inc. (1980), 273 Ind. 374, 404, 404 N.E.2d 585, 604.

Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.

Rohrabaugh v. Wagoner (1980), 274 Ind. 661, 663-64, 413 N.E.2d 891, 893.

This Court has accepted the legislature's decision that these reasons are even stronger in the medical malpractice context. The Medical Malpractice Act was enacted as a legislative response to the reduction of health care services available to the public. Id. This health care reduction was the result of health care providers making the decision to stop providing their services. Id. It was the legislative perception that health care providers were making these decisions because of increased malpractice claims and the difficulty in obtaining malpractice insurance. Id.; Johnson, 404 N.E.2d 585. One of the methods the legislature used to remedy this problem involved limiting patient remedies against health care providers, in part by restricting the time in which a plaintiff has to bring suit. The legislature required medical malpractice plaintiffs to bring their cause of action within two years of the time the act, omission, or neglect occurred, not within two years of the time the plaintiff discovered or should have discovered the alleged malpractice.

Indiana courts have previously acknowledged the inherent harshness of the occurrence rule on certain plaintiffs, but have found the rule to be reasonable in light of other policies intended to be furthered by the rule. See Rohrabaugh, 274 Ind. 661, 413 N.E.2d 891; Jones v. Cloyd (1989), Ind.App., 534 N.E.2d 257.

It is thus beyond dispute that Havens' medical malpractice action had to be brought within two years of the date of the alleged act, omission, or neglect. To determine if his claim was timely, we must determine when the events about which he complains took place.

We first note the standard of review in summary judgment cases. When reviewing the propriety of the trial court's entry of summary judgment, we...