Hospital Corp. of America v. Hiland

Decision Date18 December 1989
Docket NumberNo. 23A01-8907-CV-240,23A01-8907-CV-240
CourtIndiana Appellate Court
PartiesHOSPITAL CORPORATION OF AMERICA, Terre Haute Regional Hospital, Inc., and Manuel A. Cacdac, M.D., Appellants, v. Katherine L. HILAND, George M. Hiland, Richard Pemberton, Jr., and Sallie Pemberton, Appellees.

John D. Nell, Katherine L. Shelby, Wooden, McLaughlin & Sterner, Indianapolis, for Hospital Corp. of America and Terre Haute Regional Hosp., Inc.

John Christopher Wall, Patrick, Wilkinson, Goeller & Modesitt, Terre Haute, for Manuel A. Cacdac, M.D.

Mary A. Findling, David J. Dreyer, Price & Shula, Indianapolis, Eric A. Frey, Frey, Hunt, Hassler & Lorenz, Terre Haute, for appellees.

BAKER, Judge.


This is a consolidated appeal. 1 Defendant-appellants, Hospital Corporation of America, Terre Haute Regional Hospital, Inc. (the hospital) and Manuel A. Cacdac, M.D. (Cacdac), appeal the trial court's decision denying their motions for summary

judgment in favor of plaintiff-appellees, Katherine L. Hiland and her husband, George M. Hiland, and Richard Pemberton, Jr. and his wife, Sallie Pemberton

We reverse and remand with instructions.


In May, 1981, Katherine Hiland (Hiland), consulted Cacdac complaining of low back and neck pain. After performing an examination, Cacdac advised Hiland that she should have a complete myelogram. Thereafter, Hiland was admitted to the hospital and was given a cervical and lumbar myelogram. The hospital's radiologist interpreted the lumbar films as revealing a normal appearance of the spinal cord. Cacdac, however, interpreted the films as revealing a deteriorated disc which had to be removed surgically. Based upon Cacdac's recommendations, Hiland consented to lumbar surgery and underwent an operation on June 16, 1981. Hiland has alleged that this surgery was unnecessary and was fraudulently performed for the sole purpose of benefiting Cacdac financially.

Following her surgery and discharge from the hospital, Hiland consulted with Cacdac for five monthly follow-up visits through November, 1981. Throughout these post-operative visits, Cacdac informed Hiland that it would take a year or two for her back to heal. Hiland visited Cacdac again in November of 1982 complaining of back pain. She continued to experience neck and back discomfort and in that regard consulted two other physicians in the first quarter of 1983. Although one of the physicians advised Hiland that she might have arthritis in her spine, neither of them informed her that Cacdac had operated unnecessarily on her back. Having obtained no relief, Hiland returned to Cacdac and related the other physician's diagnosis. Cacdac denied that she had arthritis, and after reviewing the results of a neurological examination, prescribed the use of a soft cervical collar and back brace. Hiland had two other office visits with Cacdac in 1984 and her last consultation was on January 2, 1985. She alleges she maintained a doctor-patient relationship with Cacdac up to and including April 11, 1985, at which time she purchased a new back brace pursuant to a prescription she had obtained from his office earlier that month.

Hiland's neck pain continued to worsen and she consulted Dr. Marlene Aldo-Benson, a rheumatologist at the Indiana University Medical Center, about her condition. After reviewing x-rays taken prior to her lumbar surgery, Benson advised Hiland that she had osteoarthritis of the spine and that this condition existed before Cacdac operated on her. Benson further informed her that surgery was the last method recommended for treating that condition. Hiland maintains that it was at this point, June 10, 1985, that she determined that the 1981 lumbar surgery performed by Cacdac was unnecessary.

Throughout the remainder of 1985 and during 1986, Hiland spoke with three different attorneys about her case. Finally, on April 9, 1987, the Hilands commenced an action against the hospital and Cacdac.

Richard Pemberton (Pemberton) sought treatment from Cacdac on four separate occasions. In April, 1984, he visited Cacdac for intermittently recurring pain in his lower back and neck and severe numbness and loss of use of his right arm. Cacdac ordered a myelogram the results of which, as reported by a radiologist employed by the hospital, indicated Pemberton had a normal lumbar. Nevertheless, Cacdac advised Pemberton that he had a deteriorated disc in his lower back and one in his neck. Upon Cacdac's recommendation, Pemberton consented to undergo cervical disc surgery which was performed at the hospital in April, 1984. Pemberton's lower back pain continued and he returned to the hospital in July, 1984. At that time, Cacdac prescribed a chemonucleolysis injection to alleviate the pain. Pemberton remained in the hospital 48 hours and was thereafter discharged. Following his discharge, Pemberton continued to see Cacdac. In March, 1985, he was admitted to the hospital by Cacdac at which time Cacdac performed lumbar surgery in order to remove the other disc. Finally, in August, 1986, Cacdac

performed a second myelogram upon Pemberton

On March 13, 1987, the Pembertons brought suit against the hospital alleging that the treatments for which Pemberton had been admitted to the hospital by Cacdac were not necessary or warranted or were performed improperly. The complaint further alleged that agents of the hospital were or should have been aware of Cacdac's actions and negligently failed to stop Cacdac or warn Pemberton. Similarly, the Hilands' complaint against the hospital and Cacdac alleged that the surgical procedures performed by Cacdac on June 15, 1981, were unnecessary and improper. The complaint further stated that the hospital failed to take steps to stop Cacdac or warn Hiland of the unnecessary surgery.

Thereafter, the hospital moved for partial summary judgment asserting, inter alia, that Pemberton's claims arising out of the occurrences in April, 1984 and July, 1984 were barred by the applicable statute of limitations. Likewise, in response to Hiland's complaint, both the hospital and Cacdac filed motions for summary judgment asserting that Hiland's suit was barred by the two-year statute of limitations applicable to medical malpractice claims. See IND.CODE 16-9.5-3-1. Thereafter, on May 19, 1989, the trial court conducted a combined hearing on the motions for summary judgment filed by Cacdac against the Hilands and the hospital against both the Hilands and the Pembertons. After taking the matter under advisement, the trial court entered an order denying all of the motions for summary judgment. Cacdac and the hospital subsequently instituted this appeal.


I. Whether the trial court erred in denying Cacdac's motion for summary judgment filed against Hiland.

II. Whether the trial court erred in denying the hospital's motion for summary judgment filed against Hiland and partial motion for summary judgment filed against Pemberton.


The rules governing summary judgment are well settled. In reviewing a motion for summary judgment, we apply the same standard as that employed by the trial court. Summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits and testimony show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Howard v. H.J. Ricks Construction Co., Inc. (1987), Ind.App., 509 N.E.2d 201, trans. denied. We will reverse only if the record discloses an unresolved issue of fact or an incorrect application of the law to undisputed facts. Morris v. Lyons Capitol Resources, Inc. (1987), Ind., 510 N.E.2d 221.

I. Cacdac's Motion for Summary Judgment Against Hiland

The statute of limitations applicable to medical malpractice claims, IND.CODE 16-9.5-3-1, provides in pertinent part:

(a) 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....

This statute has repeatedly been described as an "occurrence" rather than a "discovery" statute. Cyrus v. Nero (1989), Ind.App., 546 N.E.2d 328; Jones v. Cloyd (1989), Ind.App., 534 N.E.2d 257; Guinn v. Light (1988), Ind.App., 531 N.E.2d 534; Ferrell v. Geisler (1987), Ind.App., 505 N.E.2d 137, trans. denied; Martin v. Rinck (1986), Ind.App., 501 N.E.2d 1086; Spoljaric v. Pangan (1984), Ind.App., 466 N.E.2d 37, trans. denied; Colbert v. Waitt (1982), Ind.App., 445 N.E.2d 1000. Thus, an action for medical malpractice must be filed within two years from the date the alleged negligent act occurred rather than from the date it was discovered.

In response to Cacdac's motion for summary judgment, Hiland argued at trial and on appeal that the doctrine of fraudulent concealment operated to toll the running of the statute of limitations. The doctrine of fraudulent concealment operates to estop a defendant from asserting a statute of limitations defense when that person, by deception or a violation of a duty, has concealed material facts from the plaintiff thereby preventing discovery of a wrong. Cyrus, supra; Ferrell, supra; Spoljaric, supra; Nahmias v. Trustees of Indiana University (1983), Ind.App., 444 N.E.2d 1204, trans. denied. Thus, equitable estoppel can arise either from active efforts to conceal the malpractice or from failure to disclose material information when a fiduciary or confidential relationship exists between the physician and patient. Id. The physician's failure to disclose that which he knows, or in the exercise of reasonable care should have known, constitutes constructive fraud. This constructive fraud terminates at the conclusion of the physician-patient relationship at which time the statute of limitations...

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