Martin v. Richey, 53A04-9603-CV-104

Decision Date13 January 1997
Docket NumberNo. 53A04-9603-CV-104,53A04-9603-CV-104
Citation674 N.E.2d 1015
PartiesMelody MARTIN, Appellant-Respondent, v. Robert W. RICHEY, Jr., M.D., Appellee-Petitioner.
CourtIndiana Appellate Court

RILEY, Judge.


Plaintiff-Appellant Melody Martin (Melody) appeals from the trial court's grant of summary judgment in favor of Defendant-Appellee Robert Richey, M.D. (Dr. Richey).

We reverse and remand.


Three issues are presented for our review, which we consolidate and restate as follows:

1. Whether the trial court erred by finding that the statute of limitations contained in the Indiana Medical Malpractice Act was constitutional.

2. Whether the trial court erred by finding that there were no genuine issues of material fact regarding whether the statute of limitations contained in the Indiana Medical Malpractice Act was tolled by the doctrine of active fraudulent concealment.


Dr. Richey is an obstetrician and gynecologist practicing in Bloomington, Indiana. On March 13, 1991, Melody went to Dr. Richey's office complaining of a lump in her right breast. Melody reported that while the lump had been there for "a while" and she had it checked before, she was beginning to experience some "shooting pains" from the lump. (R. 195). Dr. Richey was out of town, so Melody was seen by Dr. Richey's nurse, Rose Seguin (Rose). Rose made notes on her examination of Melody indicating that she checked the mass and it felt fibrocystic to her. (R. 195). Notwithstanding, Rose made arrangements for Melody to have a mammogram later that day at the Bloomington Hospital.

The mammography report issued by the radiologist at the hospital included the findings of a benign cyst just above the right nipple and a solid mass in the lower outer quadrant of the right breast. It was also stated in the report that "[b]iopsy may be indicated based on the patient's history of enlargement of this lump." (R. 202). The following day, Rose called Melody to tell her that the mammogram revealed a solid mass in the lower outer quadrant of her right breast and that the radiologist that reviewed her mammogram and ultrasound, recommended that she get a biopsy of the mass. (R. 94). Rose also told Melody that she strongly recommended that Melody not wait to schedule an excisional biopsy with a general surgeon. (R. 94). The following day, Melody telephoned Dr. Richey's office and told Rose that she had scheduled an appointment for an excisional biopsy with Dr. Topolgus on Tuesday, March 19, 1991.

When Dr. Richey returned to his office on Monday, March 18, 1991, Rose discussed Melody's case with him. Rose told Dr. Richey that she examined Melody and 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. Rose also told Dr. Richey that Melody had already scheduled an appointment for an excisional biopsy for the following day. Dr. Richey called Melody on Monday evening, and told her to cancel her appointment for the excisional biopsy, that he would perform a needle aspiration in his office instead.

On March 20, 1991, Melody saw Dr. Richey for the needle aspiration. Dr. Richey first aspirated fluid from the benign cyst. He then 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, but he was unsure whether it came from the solid mass or the surrounding tissue. (R. 168). The pathology report indicated that no malignant tumor cells were present in the specimen drawn by Dr. Richey. (R. 83).

According to Rose, who remained in the room with Melody during the needle aspiration, Dr. Richey did not tell her that she needed to follow-up with an excisional biopsy regardless of the results of the needle aspiration. In fact, Dr. Richey told Melody that he thought the lump was benign. Melody testified that Dr. Richey assured her that the mass was probably fibrocystic breast disease and that she had nothing to worry about. She further testified that Dr. Richey never told her that she needed to follow-up with Dr. Topolgus or have an excisional biopsy. Dr. Richey did not recall who communicated the results to Melody, but he was sure that she was made aware of the results. Regarding his communication with Melody at the time of the procedure, he 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. 171). Although Dr. Richey steadfastly maintains that he discussed this follow-up care with Melody at the time of the needle aspiration, there is no note in the chart to this effect. In fact, no notes regarding Melody's March 20, 1991, visit were charted. Dr. Richey did not see Melody after that visit. However, Melody continued to see Rose until October of 1991, for hormone replacement therapy.

In April of 1994, Melody experienced increased pain from the lump in her breast and pain under her right arm. She had a mammogram, which revealed an abnormal mass in the lower outer quadrant of her right breast. A core biopsy resulted in a diagnosis of adenocarcinoma of the breast. On April 15, 1994, Dr. Topolgus performed a right modified radical mastectomy of Melody's right breast. Because there was extensive lymph node involvement, Melody underwent a course of chemotherapy from May of 1994 to September of 1994.

On October 14, 1994, Melody filed her Proposed Complaint for Damages against Dr. Richey with the Indiana Department of Insurance, alleging that Dr. Richey was negligent in his care and treatment due to his failure to diagnose and treat her breast cancer in a timely manner. Melody requested review by the Medical Review Panel of the allegations raised in her complaint pursuant to the Indiana Malpractice Act, Ind.Code 27-12-1-1 et seq. On May 19, 1995, Dr. Richey filed a Motion for Preliminary Determination of a Question of Law and Motion to Dismiss, together with a supporting memorandum of law. Dr. Richey essentially argued that Melody's complaint was time-barred by the statute of limitations contained in the Act. Specifically, he stated that the alleged negligence occurred on March 20, 1991; the physician-patient relationship ceased to exist no later than October 2, 1991; and Melody's proposed complaint was not filed until October 14, 1994. Dr. Richey therefore requested that Melody's complaint be dismissed for failure to state a claim upon which relief can be granted because her claim was time-barred by the statute of limitations. On September 18, 1995, Melody filed her opposition to Dr. Richey's motion arguing that the statute of limitations was tolled by the equitable doctrine of fraudulent concealment and that the statute of limitations was an unconstitutional violation of the Indiana and federal due process clauses and Indiana's privileges and immunities clause. Dr. Richey filed his reply in support of summary judgment on October 16, 1995. A hearing was held on November 27, 1995, and the court issued the following ruling on December 27, 1995:

The court having now reviewed the Petitioner's motion, supporting documents and arguments and the respondent's supporting documents and arguments in opposition thereto and now being fully advised finds that the Petitioner's conduct in performing a needle aspiration on the Respondent's breast on March 20, 1991 and his reporting of a negative result did not amount to active fraudulent concealment as that term is discussed in Hughes v. Glaese, 637 N.E.2d 822 (Ind.App. 1 Dist., 1994). Further, the court can find no case in Indiana finding any statute of limitation to be unconstitutional.

The court concludes that the constitutional statute of limitations has not been tolled in the fact[s] of this case. The Respondent is, therefore, time barred from pursuing a medical malpractice claim against Petitioner.

(R. 329).1 We note that after the trial court issued its ruling and before this case was fully briefed, Hughes v. Glaese was vacated on transfer. See 659 N.E.2d 516 (Ind.1995).


When reviewing motions for summary judgment, we apply the same standard as the trial court. Gilliam v. Contractors United, Inc., 648 N.E.2d 1236, 1238 (Ind.Ct.App.1995), trans. denied. A grant of summary judgment requires that the evidence show that there exists no issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); Wright v. Carter, 622 N.E.2d 170, 171 (Ind.1993). All facts and inferences must be liberally construed in the light most favorable to the nonmoving party. Haas Carriage, Inc. v. Berna, 651 N.E.2d 284, 287 (Ind.Ct.App.1995).

When reviewing summary judgment rulings, we may consider only those portions of the pleadings, depositions, answers to interrogatories admissions, matters of judicial notice, and any other matters designated to the trial court by the moving party for purposes of the motion for summary judgment. T.R. 56(C), (H); Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993). The party moving for summary judgment bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Hermann v. Yater, 631 N.E.2d 511, 513 (Ind.Ct.App.1994), reh'g denied. Once the movant satisfies this burden, the burden shifts to the nonmoving party to produce specifically designated...

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12 cases
  • Martin v. Richey, Jr., M.D., 53S04-9805-CV-271
    • United States
    • Supreme Court of Indiana
    • July 8, 1999
    ...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 d......
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    • Supreme Court of Indiana
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    ...trial court denied defendant's motion for summary judgment. The Court of Appeals affirmed the trial court and, citing Martin v. Richey, 674 N.E.2d 1015 (Ind.Ct. App.1997), held that the statute of limitations was unconstitutional on its face under Article I, Sections 23 and 12, the Privileg......
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