Nahmias v. Trustees of Indiana University

• Decision Date: 02 February 1983
• Docket Number: No. 1-682A154,1-682A154
• Citation: 444 N.E.2d 1204
• Parties: Albert NAHMIAS and Dora Nahmias, Plaintiffs-Appellants, v. TRUSTEES OF INDIANA UNIVERSITY, Indiana University Hospital, and Beng Tek Joe, M.D., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 1204

444 N.E.2d 1204

Albert NAHMIAS and Dora Nahmias, Plaintiffs-Appellants, v. TRUSTEES OF INDIANA UNIVERSITY, Indiana University Hospital, and Beng Tek Joe, M.D., Defendants-Appellees.

No. 1-682A154.

Court of Appeals of Indiana,

First District.

Feb. 2, 1983.

Davis & Davis, Greenfield, Howard S. Young, Jr., Young & Young, Indianapolis, for plaintiffs-appellants.

Richard L. Fairchild, Stewart Irwin Gilliom Fuller & Meyer, Indianapolis, for defendant-appellee Dr. Beng Tek Joe.

Ralph A. Cohen, Frederick Wm. La Cava, Ice, Miller, Donadio & Ryan, Indianapolis, for defendant-appellee Trustees of Indiana University, Indiana University Hosp RATLIFF, Judge.

STATEMENT OF THE CASE

Albert and Dora Nahmias appeal the granting of summary judgment in favor of Trustees of Indiana University (University), Indiana University Hospital (Hospital), and Beng Tek Joe, M.D. (Dr. Joe), on the grounds that their claim was barred by the medical malpractice statute of limitations. We affirm.

FACTS

In October 1976, Albert Nahmias was found to have cancer of the bladder. Treatment was planned in three stages: (1) diversion of urine from the bladder, (2) radiation of the pelvic area to destroy as much of the tumor as possible, and (3) surgical removal of the bladder, prostate, seminal vesicles, and most of the fat and lymph nodes in that area.

On October 27, 1976, the urinary diversion was performed by Dr. Frankel, Albert's urologist. This was accomplished by means of an ileal loop, whereby the ureters were severed and connected to a loop of bowel which was then severed from the bowel, closed at one end, and drained through Albert's side. Following his recovery from this procedure, Albert was referred to the Indiana University Medical Center, Department of Radiology, for the radiation therapy. Dr. Joe was the radiotherapist administering this treatment. Albert's radiation therapy treatments were in November and December 1976. The last contact with Dr. Joe and Hospital was on or about January 24, 1977.

Subsequent to the completion of the radiation therapy, Albert began urinating normally rather than through the ileal loop. He informed Dr. Frankel of this about January 17, 1977, who advised Albert this was a complication from the radiation. In February 1977, Albert was hospitalized at Winona Hospital. He had stopped urinating and became extremely ill. Surgery then was performed on February 12, 1977, and a tube was put directly into the kidney. Two months later, further surgery was performed, the original intention of which was to refix the ileal loop. However, the ileal loop and ureters had been destroyed by the radiation and the ileal loop was not functioning. The removal of the bladder, prostate, and seminal vesicles was then performed. The Nahmiases were informed by Dr. Frankel in April or May of 1977 that the ileal loop was damaged, the ureters were eaten up, and that such was the result of radiation damage.

Since this time, Albert has suffered permanent kidney failure necessitating dialysis three times per week. Albert and Dora were not given any expert medical opinion that Albert had been the victim of medical malpractice until April 18, 1979, when Dr. Frankel told them it was his opinion that Albert's problems resulted from medical malpractice in the radiation treatment. Albert and Dora commenced this action on March 5, 1981, to recover damages for personal injuries and loss of consortium. The trial court granted summary judgment to all defendants and entered the following findings of fact, conclusions of law, and judgment:

"Findings of Fact

"The following facts are undisputed and form the basis for judgment.

1. Plaintiff Albert Nahmias was given radiation therapy as part of his treatment for cancer of the bladder by defendant Dr. Beng-Tek Joe at Indiana University Medical Center, owned and operated by defendant Trustees of Indiana University (Indiana University Hospital).

2. Dr. [sic] Nahmias' last professional contact with Dr. Joe and the I.U. Medical Center was on or about January 24, 1977 and more than two years prior to the date of filing of the present complaint, February 6, 1981.

3. On or about February 12, 1977, and more than two years prior to the date of filing of the present complaint, February 6, 1981, plaintiffs were informed by Mr. Nahmias' physician, Dr. Frankel, that the radiation therapy had produced an abnormal result which had caused injury to Mr. Nahmias 4. Plaintiffs' complaint states no allegation of fraud, actual or constructive, against either defendant or any of them, and plaintiffs' counsel at oral argument heard January 19, 1982 stated that plaintiff was not advancing or relying on any argument tolling the Statute of Limitations on grounds of actual or constructive fraud by defendants or any of them, and the Court finds no evidence of any fraud, actual or constructive, by the defendants or any of them.

Conclusions of Law

1. The law is with the defendants and each of them and against the plaintiffs.

2. Plaintiffs' complaint against defendants and each of them are barred by the applicable Statute of Limitations, I.C. 16-9[.]5-3-1.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that judgment is hereby ordered for defendant, Indiana University and Indiana University Hospital and for the costs of this action." ¹ Record at 183-85.

ISSUES

The sole issue presented for our review is whether or not the trial court erred in granting summary judgment to the University, Hospital, and Dr. Joe on the grounds that the Nahmiases' claims were barred by the statute of limitations in the Indiana Medical Malpractice Act.

DISCUSSION AND DECISION

Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Moll v. South Central Solar Systems, Inc., (1981) Ind.App., 419 N.E.2d 154; Kendrick Memorial Hospital v. Totten, (1980) Ind.App., 408 N.E.2d 130. In reviewing the granting of summary judgment by the trial court, our function is to determine first if a genuine issue of material fact exists, and if none, whether the court properly applied the law. Matter of Garden & Turf Supply Corp. v. Strange, (1982) Ind.App., 440 N.E.2d 710; Zalewski v. Simpson, (1982) Ind.App., 435 N.E.2d 74, trans. denied. Here, the trial court found there was no genuine issue of fact, and the record supports that conclusion. Therefore, we must determine if the trial court correctly construed and applied the law in determining that the Nahmiases' claims were barred by the applicable statute of limitations.

The Indiana Medical Malpractice Act, Ind.Code Sec. 16-9.5-1-1 et seq., became effective July 1, 1975. The statute of limitations provision in that act, Ind.Code Sec. 16-9.5-3-1 (Burns Supp.) provides:

"No claim, whether in contract or tort, may be brought against a health care provider based upon professional services or health care rendered or which should have been rendered unless filed within two years from the date of the alleged act, omission or neglect except that a minor under the full age of six years shall have until his eighth birthday in which to file. This section applies to all persons regardless of minority or other legal disability."

Albert was 66 years old at the time of the radiation therapy. It is undisputed that the radiation treatments at Hospital under Dr. Joe's care were in November and December of 1976 and that Albert last saw Dr. Joe in January 1977. Thus, unless there is some recognized exception to the statute available to the Nahmiases, the statute of limitations clearly had run when suit was filed in 1981.

The Nahmiases contend that the statute of limitations did not begin to run against them until April 18, 1979, the first date they were told by Dr. Frankel that there had been medical malpractice in the radiation therapy. Since this action was commenced within two years from the date they first obtained expert medical opinion of the existence of malpractice, they argue the action was commenced within the time limits of the statute. Nahmiases further argue that any other construction of the medical malpractice statute of limitations renders that act unconstitutional. For reasons which we shall demonstrate, we cannot agree with either contention.

The constitutionality of Indiana's medical malpractice act generally has been upheld. Johnson v. St. Vincent Hospital, Inc., (1980) Ind., 404 N.E.2d 585. Our supreme court in Johnson recognized the problems faced by health care providers with regard to malpractice claims and the inability to obtain adequate malpractice insurance coverage at reasonable prices, if at all. The court found that the legislature had acted constitutionally in responding to those problems in the public interest. The court in Johnson dealt specifically with the limitation of actions provision relating to minors and found no constitutional infirmity.

The statute of limitations in the 1975 medical malpractice act has been the subject of other decisions of this court. In Gooley v. Moss, (1979) Ind.App., 398 N.E.2d 1314, trans. denied, we held that a plaintiff who was twelve years old when sterilized by a hysterectomy performed on June 18, 1970, whose malpractice action was filed April 3, 1978, was barred from asserting her claim by the two year limitation provisions of the 1975 act. (Ind.Code Sec. 16-9.5-3-1)

In Carmichael v. Silbert, (1981) Ind.App., 422 N.E.2d 1330, trans. denied, we held that IC Sec. 16-9.5-3-1 barred a plaintiff operated on in February and March of 1977, whose action was filed February 5, 1980. We further found the limitation provision not violative of either the due process clause of the Fourteenth Amendment to the United States Constitution or of the privileges and immunities clause of the Indiana Constitution. We pointed out that the medical malpractice statute of limitations is tied to the date of the "alleged act, omission, or neglect complained of" rather...