Martin v. Richey, Jr., M.D., 53S04-9805-CV-271

CourtSupreme Court of Indiana
Citation711 N.E.2d 1273
Docket NumberNo. 53S04-9805-CV-271,No. 53A04-9603-CV-104,53S04-9805-CV-271,53A04-9603-CV-104
Parties(Ind. 1999) MELODY MARTIN Appellant/Respondent (Plaintiff Below) v. ROBERT W. RICHEY, JR., M.D., Appellee/Petitioner (Defendant Below). IN THE INDIANA SUPREME COURT
Decision Date08 July 1999

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711 N.E.2d 1273 (Ind. 1999)
MELODY MARTIN Appellant/Respondent (Plaintiff Below)
ROBERT W. RICHEY, JR., M.D., Appellee/Petitioner (Defendant Below).
Supreme Court No. 53S04-9805-CV-271.
Court of Appeals No. 53A04-9603-CV-104
July 8, 1999.


The Honorable Douglas R. Bridges, Judge,

Cause No. 53C05-9505-CP-585

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ATTORNEY FOR APPELLANT: Mary A. Findling, Findling, Garau, Germano & Pennington, P.C., 151 N. Delaware Street, Suite 1515, Indianapolis, Indiana 46204

AMICUS CURIAE FOR APPELLANT INDIANA TRIAL LAWYERS ASSOCIATION: Laurence H. Tribe, 1575 Massachusetts Ave., Cambridge, Massachusetts 02138, Roger L. Pardieck, Thomas C. Doehrman, Edgar W. Bayliff, Robert L. Justice, Henry J. Price, Mary Beth Ramey, Gregory Cross, 150 West Market Street, Suite 210, Indianapolis, Indiana 46204

ATTORNEYS FOR APPELLEE: Gary J. Clendening, Kendra Gowdy Gjerdingen, Mallor, Clendening, Grodner & Bohrer, 511 Woodscrest Drive, P.O. Box 5787, Bloomington, Indiana 47407-5787, Karl Mulvaney, Bingham Summers Welsh & Spilman, 10 West Market Street, Suite 2700, Indianapolis, Indiana 46204-2982

AMICUS CURIAE FOR APPELLEE INDIANA STATE MEDICAL ASSOCIATION: David C. Jensen, Sherry L. Clarke, Judith I. Snare, Eichhorn & Eichhorn, 200 Russell Street, P.O. Box 6328, Hammond, Indiana 46325

AMICUS CURIAE FOR APPELLEE INDIANA DEFENSE LAWYERS ASSOCIATION: Philip E. Kalamaros, Edward N. Kalamaros & Associates, 129 North Michigan Avenue, P.O. Box 4156, South Bend, Indiana 46634-4156, Kevin Charles Murray, Todd J. Kaiser, Nelson D. Alexander, T. Joseph Wendt, Locke, Reynolds, Boyd & Weisell, 1000 Capital Center South, 201 North Illinois Street, Indianapolis, Indiana 46204



Dr. Robert W. Richey, Jr., appellee/petitioner and defendant below ("defendant"), challenges the decision of the Court of Appeals, 674 N.E.2d 1015 (Ind. Ct. App. 1997), which reversed the trial court's grant of summary judgment in favor of defendant. The Court of Appeals held, contrary to the decision of the trial court, that the doctrine of fraudulent concealment permits defendant's former patient, Melody Martin ("plaintiff"), to avoid the two-year medical malpractice statute of limitations, Indiana Code section 34-18-7-1(b) (1998) (repealing section 27-12-7-1(b) (1993)), and that the statute of limitations, in any event, is unconstitutional under Article I, Sections 23 and 12, the Privileges and Immunities and Open Courts Clauses of the Indiana Constitution. We grant transfer because we agree with the result reached by the Court of Appeals, but reach this result by different means. We believe that summary judgment was inappropriate because the medical malpractice statute of limitations, under both Section 23 and Section 12, is unconstitutional as applied to plaintiff. We therefore reverse the trial court's grant of summary judgment in favor of defendant and remand for further proceedings not inconsistent with this opinion.


The facts viewed in the light most favorable to nonmovant Melody Martin reveal that on March 13, 1991, Martin went to the office of Dr. Robert Richey, who is a gynecologist practicing in Bloomington, Indiana, and complained that she had a lump in her right breast. She reported that the lump had been there for a while and that she had had it checked before, but recently she had experienced some "shooting pains" from the lump. (R. at 195.) Because Dr. Richey was out of town on March 13, Rose Seguin ("Seguin"), Dr. Richey's nurse practitioner, examined Martin. Seguin made arrangements

Page 1275

for Martin to have a mammogram at Bloomington Hospital on the same day.

The radiologist who read Martin's mammogram noted in his report that there was a benign cyst just above the nipple in the right breast and that there also was a "[s]olid echogenic mass in the lower outer quadrant of the right breast." (R. at 202.) As to the solid mass, he advised that a "[b]iopsy may be indicated based on the patient's history of enlargement of this lump." (R. at 202.)

On the next day, March 14, 1991, Seguin called Martin to tell her that the mammogram revealed a solid mass in the lower outer quadrant of her right breast, and that the radiologist who had reviewed her mammogram and ultrasound recommended that she get a biopsy of the mass. Seguin also advised Martin that she not wait to schedule an excisional biopsy with a general surgeon. The following day, Martin telephoned Seguin and told her that she had scheduled an appointment for an excisional biopsy with Dr. Topolgus, a general surgeon, on Tuesday, March 19, 1991. This information is noted on the patient's chart. Martin also asked that Dr. Richey call her when he returned to the office because she had some questions about the mammogram and the biopsy procedure.

When Dr. Richey returned to his office on Monday, March 18, 1991, Seguin reported that, upon her examination of Martin, she felt a firm solid mass in the right outer quadrant of her right breast, that the mammogram and ultrasound revealed a solid mass, and that the radiologist recommended an excisional biopsy. Seguin also advised him that Martin already had scheduled an excisional biopsy for the next day. Dr. Richey did not consult with the radiologist regarding his findings and recommendation regarding the need for a biopsy. He called Martin on Monday evening and told her to cancel her appointment for the excisional biopsy. Dr. Richey advised her that he would perform a needle aspiration in his office instead. Martin testified that Dr. Richey did not inform her that, even if the results of the needle biopsy were negative for malignancy, there would be a need for further follow-up with Dr. Topolgus.1

Dr. Richey went on to emphasize that he advised Martin regarding the needle aspiration because she did not have insurance and was concerned about the cost of the biopsy procedure, as well as about pain, time off work, and the disfigurement of her breast. He stated that he performed the aspiration procedure free of charge, and again emphasized that he had recommended follow-up with Dr. Topolgus even before performing the biopsy:

Q. Had you discussed with her if the findings came back negative with the aspiration that you would recommend going forward with an excisional biopsy?

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A. We didn't put it in those terms. As I told her that night when we were discussing this added option that I would provide for her at no charge that I would -- since there was no evidence at that point stating definitively that she had cancer in cooperation [sic] with her desire to keep the cost of this as low as possible I said that we should take the information she had from her mammogram and from her ultrasound along with a breast aspiration and that I would discuss that with Dr. Topolgus and then she should, at that point in time, follow up with Dr. Topolgus with all the information she had available at that point in time to see if her breast biopsy was, in his opinion, indicated. Based on the evidence that we had gotten together I felt that that was the most cost effective matter [sic] in which we could get her case dealt with.

(R. at 153.) No notation regarding this telephone conversation appears in Dr. Richey's medical records for Melody Martin.

On March 20, 1991, Martin went to Dr. Richey's office for the needle aspiration. He first aspirated fluid from the cyst, and then, using the same syringe, he made several attempts to get fluid from the solid mass area. On the sixth attempt he was able to extract a small amount of liquid from the area, but he was unsure whether it came from the solid mass or the surrounding tissue. Nevertheless, according to Martin, Dr. Richey informed her that he was able to aspirate a small amount of fluid from the solid mass and did not tell her that the aspirate could have come from the surrounding tissue rather than the mass itself. There is nothing in the record, as we read it, that reflects that Dr. Richey disputes these facts. The pathology report indicated that no malignant tumor cells were present in the specimen drawn by Dr. Richey.

According to Seguin, who stayed in the room with Martin while Dr. Richey performed the needle aspiration, he told Martin that he thought the lump was benign, and he did not tell her that she needed to follow-up with an excisional biopsy regardless of the results of the needle aspiration.2 Martin also testified that Dr. Richey assured her that the mass was probably fibrocystic breast disease,3 and that she had nothing to worry about. She further testified that Dr. Richey did not tell her at the time of the aspiration or later that she needed to follow-up with Dr. Topolgus or to get an excisional biopsy. Regarding his communication with Martin at the time of the procedure, Dr. Richey testified as follows:

The discussion I had with Melody at the time of the aspiration was that we would get the aspiration, and once those results were available that I wanted her to carry on, at least discuss the matter with Dr. Topolgus, either discuss it over the phone or better yet plan to have an office visit with him and go over all these results and determine at that point in time whether she should proceed with a breast biopsy.

(R. at 171.) Again, although Dr. Richey maintains that he discussed follow-up care with Martin in Seguin's presence, there is no note in the chart to this effect, and, in fact, there were no notes regarding Dr. Richey's needle aspiration on Martin or any of his conversations with her.

After the needle aspiration, Dr. Richey maintains that he discussed Martin's case with Dr. Topolgus. Neither Martin nor Dr. Richey's office, however, scheduled a follow-up consultation with Dr. Topolgus at that time. After March of 1991, Martin did not consult with Dr. Richey or any other health care provider regarding the lump until April

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