Manley v. Sherer
| Decision Date | 30 December 2011 |
| Docket Number | No. 59A01–1104–PL–190.,59A01–1104–PL–190. |
| Citation | 960 N.E.2d 815 |
| Court | Indiana Appellate Court |
| Parties | Mary Alice MANLEY and Gary Manley, Appellants–Respondents, v. Ryan J. SHERER, M.D., and Sherer Family Medicine, P.C., Appellees–Petitioners. |
OPINION TEXT STARTS HERE
W. Brent Gill, Ken Nunn Law Office, Bloomington, IN, Attorney for Appellants.
Edward J. Liptak, Jeremy M. Dilts, Carson Boxberger LLP, Bloomington, IN, Attorneys for Appellees.
Respondents–Appellants Mary Alice Manley and Gary Manley appeal the trial court's grant of summary judgment to Petitioners–Appellees Ryan J. Sherer, M.D., and Sherer Family Medicine, P.C. (collectively, “Sherer”). We reverse and remand.
The Manleys raise two issues, which we consolidate and restate as: whether the trial court erred by granting Sherer's motion for summary judgment.
On November 27, 2006, Mary Manley was involved in a head-on automobile collision with Kimberly Zehr. Zehr had lost consciousness while driving due to a medical conditions and medications prescribed by her physician, Sherer. Sherer had last treated Zehr on November 21, 2006. Mary Manley suffered permanent debilitating injuries as a result of the accident, and Gary Manley experienced a loss of spousal consortium.
The Manleys sued Zehr. That lawsuit was subsequently settled, and the terms of the settlement are not provided in the record. On November 25, 2008, the Manleys filed a proposed complaint against Sherer with the Indiana Department of Insurance. On July 30, 2010, Sherer filed with the trial court a Motion for Preliminary Determination of Law and for Summary Judgment. The Manleys responded to Sherer's Motion, and Sherer filed a reply. The trial court held a hearing on Sherer's Motion. Subsequently, the trial court granted summary judgment to Sherer on all of the Manleys' claims and directed the entry of judgment in favor of Sherer. This appeal followed.
We review an appeal from summary judgment de novo. Eads v. Cmty. Hosp., 932 N.E.2d 1239, 1243 (Ind.2010). Summary judgment is proper when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). All facts established by the designated evidence and inferences therefrom are to be construed in favor of the nonmoving party. Eads, 932 N.E.2d at 1243. We will affirm the trial court's grant of summary judgment if it is sustainable on any theory or basis in the record. Price v. Kuchaes, 950 N.E.2d 1218, 1226 (Ind.Ct.App.2011), trans. denied. A defendant who asserts an affirmative statute of limitations defense must establish that the action was commenced after the limitation period has run. Eads, 932 N.E.2d at 1243. The burden then shifts to the plaintiff to show a material fact that precludes summary judgment. Id.
In this case, the Manleys alleged that Sherer had been negligent in his treatment of Zehr by failing to warn Zehr not to drive. As a result, the Manleys conclude, Zehr drove despite her medical conditions and the medications prescribed by Sherer, which caused Zehr's collision with Mary Manley and the resulting injuries. In response, Sherer claims that the Manleys' proposed complaint was untimely filed and that the medical malpractice claim is without merit.
The Indiana Medical Malpractice Act sets forth a two year statute of limitations for claims by victims of alleged medical malpractice, as follows:
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 the claim is filed within two (2) years after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor's eighth birthday to file.
Ind.Code § 34–18–7–1(b) (1998). This statute is occurrence-based and differs from statutes of limitation that leave the period to assert a claim open for a fixed number of years after the claim accrues, which often requires that the claim be discovered. Herron v. Anigbo, 897 N.E.2d 444, 448 (Ind.2008). The occurrence-based statute of limitations set forth in Indiana Code section 34–18–7–1(b) is constitutional on its face. Id. Nevertheless, the statute does not explicitly address circumstances where medical malpractice is not discovered until after the malpractice has occurred. In those circumstances, our Supreme Court has outlined the following methodology:
Initially, a court must determine the date the alleged malpractice occurred and determine the discovery date—the date when the claimant discovered the alleged malpractice and resulting injury, or possessed enough information that would have led a reasonably diligent person to make such discovery. If the discovery date is more than two years beyond the date the malpractice occurred, the claimant has two years after discovery within which to initiate a malpractice action. But if the discovery date is within two years following the occurrence of the alleged malpractice, the statutory limitation period applies and the action must be initiated before the period expires, unless it is not reasonably possible for the claimant to present the claim in the time remaining after discovery and before the end of the statutory period.
Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind.2005). Factual disputes relating to the running of the limitations period, such as the date on which the plaintiff first learns of the injury, are to be resolved by the trier of fact. Herron, 897 N.E.2d at 452.
Pursuant to Booth, we must first determine whether the Manleys discovered Sherer's alleged malpractice within the two-year statute of limitations. Sherer last treated Zehr on November 21, 2006. That was the last opportunity for Sherer to have warned Zehr not to drive. Therefore, the two-year time period set forth in Indiana Code section 34–18–7–1(b) began to run on that date and, in the absence of intervening factors, would have expired on November 21, 2008.
Zehr and Mary Manley's collision occurred on November 27, 2006. At the scene of the accident, Manley heard Zehr say “that [she] should not be driving because of her medical condition.” Appellants' App. p. 24. Construing all facts in favor of the nonmovants, the circumstances surrounding the accident were sufficient to lead a reasonably diligent person to discover Sherer's alleged malpractice. The Manleys were cognizant of Mary Manley's injuries and had the opportunity to investigate any claims arising from the accident. Furthermore, the Manleys hired counsel and filed suit against Zehr. Thus, the Manleys possessed sufficient information on November 27, 2006 to allow a reasonably diligent person to discover Sherer's alleged malpractice.
The next step is to determine whether it was reasonably possible for the Manleys to file their claims in the time remaining after their discovery of the alleged malpractice and before the end of the two-year period. See Booth, 839 N.E.2d at 1172. The Manleys discovered evidence of Sherer's alleged malpractice on November 27, 2006, well before the two-year statute of limitations would have expired. In addition, the Manleys were represented by counsel during some or all of this period, because they were suing Zehr. During their lawsuit against Zehr, they submitted third-party discovery requests to Sherer and received his treatment records on June 12, 2007, which left ample time to file suit before the two-year period expired. We conclude that it was reasonably possible for the Manleys to file suit before the end of the statute of limitations period on November 21, 2008. See Moyer v. Three Unnamed Physicians, 845 N.E.2d 252, 260 (Ind.Ct.App.2006) (). Thus, the Manleys' November 25, 2008 proposed complaint was filed outside of the statutory two-year period.
The Manleys contend that their complaint is saved by the doctrine of continuing wrong.1 The doctrine of continuing wrong applies where an entire course of conduct combines to produce an injury. Garneau v. Bush, 838 N.E.2d 1134, 1143 (Ind.Ct.App.2005), trans. denied. In order to apply the doctrine, the plaintiff must demonstrate that the alleged injury-producing conduct was of a continuous nature. Id. When this doctrine applies, the statutory limitations period begins to run at the end of the continuing wrongful act. Id.
In Garneau, Bush installed an artificial left hip for Garneau. The model Bush used was obsolete and no longer medically appropriate. Over the next six months, Garneau experienced continuing hip pain and repeated dislocations of the artificial hip while under Bush's care. Bush prescribed pain medications for Garneau's symptoms, although her symptoms were actually caused by the obsolete artificial hip. Bush eventually referred Garneau to an orthopedic surgeon, who replaced the artificial hip with a newer, more modern model. Garneau filed a proposed complaint against Bush. Bush moved for summary judgment, and the trial court granted his motion. On appeal, this Court determined that Garneau was aware of Bush's malpractice and could have filed a complaint within the two-year statute of limitations period but did not. Nevertheless, this Court concluded that there was a genuine issue of material fact as to whether the statute of limitations was tolled by the doctrine of continuing wrong. Bush installed an obsolete prosthesis, and he subsequently failed to recommend revision and instead treated Garneau with pain medication. Consequently, the statute of limitations was extended, and Bush was not entitled to summary judgment on that basis.
In this case, Sherer saw Zehr several times per month in the months leading up to the accident. At an appointment...
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