Herron v. Anigbo

Decision Date13 November 2008
Docket NumberNo. 45S03-0811-CV-594.,45S03-0811-CV-594.
Citation897 N.E.2d 444
PartiesVictor HERRON, Appellant (Plaintiff below), v. Anthony A. ANIGBO, M.D., Appellee (Defendant below).
CourtIndiana Supreme Court

Anthony DeBonis, Jr., Highland, IN, Attorney for Appellant.

Robert F. Parker, Chad J. Melchi, Merrillville, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-0608-CV-378.

BOEHM, Justice.

The Indiana Medical Malpractice Act provides for an occurrence-based statute of limitations, i.e., a medical malpractice claim must be filed within two years after the act or omission alleged to constitute malpractice. We have held that the statute is constitutional on its face but may violate the Indiana Constitution if applied to a plaintiff who despite exercise of reasonable diligence does not learn of the injury or malpractice before the period expires. We elaborate what exercise of reasonable diligence requires when, as here, the limitations period is occurrence-based. Limitations issues in most cases are resolved as a matter of law. There may, however, be genuine issues of material fact as to when the plaintiff in exercise of reasonable diligence should learn of the injury or disease and that it may be attributable to malpractice. If limitations issues cannot be resolved as a matter of law on summary judgment, factual disputes are to be submitted to the trier of fact.

Facts and Procedural History

This is an appeal from the grant of summary judgment against the plaintiff, Victor Herron, on the basis of the statute of limitations. Accordingly, we accept for these purposes the designated evidence most favorable to Herron.

Herron sustained a fall in his home that rendered him a quadriplegic. The next day, March 6, 2002, Dr. Anthony Anigbo performed spinal surgery, which included the placement of a bone graft and a plate, presumably to create a cervical fusion.1 Herron remained in hospitals and care facilities following his surgery. He had difficulty speaking and suffered from infection and pulmonary difficulties that required the use of a ventilator for nine months. On June 18, 2003, Herron met with Dr. Matthew Hepler, who determined that Herron was not yet a candidate for a rehabilitation facility. Dr. Hepler's report noted several postoperative complications, some of which "may well require revision surgery." Dr. Hepler recommended more tests to determine further treatment.

In November 2003, Dr. Jacquelyn Carter informed Herron that his "condition has deteriorated since the accident, and that a likely cause of the deterioration was negligent follow-up care." On November 11, 2003, Herron underwent another spinal surgery, including removal of the bone graft and plate, "revision anterior cervical fusion" using another bone graft, and the "application of a halo."2 As of January 22, 2004, Herron was unable to be transported by car and required the use of oxygen. Exactly two years after his fall, on March 5, 2004, Dr. Hepler noted that Herron was "doing well without new complaint." Herron was able to speak, but was still in a halo. Herron filed his complaint on December 7, 2004,3 alleging medical malpractice by Dr. Anigbo in "failure to take proper precautions prior to surgery, failure to monitor the patient after surgery, and failure to properly perform the surgery."

Dr. Anigbo moved for summary judgment, contending that the complaint was barred by the two-year, occurrence-based statute of limitations pursuant to Indiana Code section 34-18-7-1(b) (2004). The trial court granted the motion, finding that Herron knew, or should in the exercise of reasonable diligence have known, of Dr. Anigbo's malpractice from Dr. Hepler's June 2003 report, and that the remaining nine-month window gave Herron a meaningful opportunity to file his claim before the statute expired in March 2004. The Court of Appeals reversed and remanded. Herron v. Anigbo, 866 N.E.2d 842, 843 (Ind.Ct.App.2007). It held that Herron did not discover his claim until November 2003, when Herron met with Dr. Carter, and that Herron did not have a meaningful opportunity to pursue his claim in the ensuing four months before the two-year limitations period expired. Id. at 846. Both courts assumed the date of Herron's initial surgery, March 6, 2002, to be the date the limitations period began to run. We grant transfer concurrent with this opinion.

Standard of Review and Burdens of Proof

This Court applies the same standard as the trial court when reviewing a grant or denial of summary judgment. Row v. Holt, 864 N.E.2d 1011, 1013 (Ind. 2007). Therefore, summary judgment is to be affirmed only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Id. All facts established by the designated evidence, and all reasonable inferences from them, are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind.2007). A defendant in a medical malpractice action who asserts the statute of limitations as an affirmative defense bears the burden of establishing that the action was commenced beyond that statutory period. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind.2000). If this is done, however, the facts establishing any incapacity or the reasonableness of the plaintiff's diligence in filing a claim are uniquely within the plaintiff's knowledge. It is therefore appropriate that the burden shifts to the plaintiff to establish "an issue of fact material to a theory that avoids the defense." Id.

I. The Limitations Period for Medical Malpractice Claims

The Indiana Medical Malpractice Act's two-year statute of limitations runs from the date of the negligent act or omission. Ind.Code § 34-18-7-1(b) (2004). In this respect it differs dramatically from the usual statute of limitations which leaves the period to assert a claim open for a fixed number of years after the claim accrues, which often requires that it be discovered. This occurrence-based limitations period is constitutional on its face. Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 403-04, 404 N.E.2d 585, 603-04 (1980). Martin v. Richey, 711 N.E.2d 1273, 1279 (Ind. 1999), reaffirmed the holding in Johnson that the Indiana Constitution does not mandate a discovery rule or preclude an occurrence-based limitations period. We held, however, 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. Id. at 1282. We 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. Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind.2005).

A. Triggering an Occurrence-Based Limitations Period

Malpractice claims may be asserted in a variety of contexts. Some claims are for failure to diagnose an unknown progressive condition such as the breast cancer in Martin. Others are for failure to arrest or cure a known progressive condition such as the degenerative eye condition in Booth. Yet others are for injuries created by the substandard treatment. An extreme example is surgery on the wrong limb. Similarly, the circumstances alerting the patient to the injury or to the potential of malpractice vary widely. A patient can learn the fact of disease or injury either from personal knowledge of pain or symptoms or from a professional examination. In each of these contexts, where the constitutionality of the occurrence-based limitations period as applied to a given case is in issue, the ultimate question becomes 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." Id. at 1172. Although we have sometimes referred to the critical date as the "discovery date," we think a more accurate term is "trigger date," because actual or constructive discovery of the malpractice often postdates the time when these facts are known. Moreover, the trigger date, unlike a typical discovery date applicable to an accrual of a claim, in most circumstances does not start a fixed limitations period. Rather, it is the date on which a fixed deadline becomes activated.

B. Remaining Time After the Period Is Triggered

The length of time within which a claim must be filed after a trigger date in an occurrence-based statute also varies with the circumstances. 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. See, e.g., Martin, 711 N.E.2d 1273 (claim timely filed in October 1994 when cancer first discovered in April 1994 even though the alleged malpractice took place in March 1991); Van Dusen v. Stotts, 712 N.E.2d 491 (Ind.1999) (claim timely filed in 1996 when cancer discovered in 1995 even though the alleged malpractice took place in 1992). But 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. In Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 697 (Ind.2000), we explained that

As long as the claim can reasonably be asserted before the statute expires, the only burden imposed upon the later discovering plaintiffs is that they have less time to make up their minds to sue. The relatively minor burden of requiring a claimant to act within the same time period from the date of occurrence, but with less time to decide to sue, is far less severe than barring the claim altogether.

If 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...

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    ...diligence inquiry has long featured in due process reasonableness determinations and still does. See, e.g., Herron v. Anigbo , 897 N.E.2d 444, 449 (Ind. 2008) ("[T]he plaintiff must file before the statute of limitations has run if possible in the exercise of due diligence."); Tenet Hosps. ......
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