Spoljaric v. Pangan, 3-583A129

• Decision Date: 10 July 1984
• Docket Number: No. 3-583A129,3-583A129
• Citation: 466 N.E.2d 37
• Parties: Paul SPOLJARIC, Bruce Spoljaric, Individually and as Husband and Wife; Kimberly, Philip & Heather Spoljaric, all Minors b/n/f Bruce Spoljaric, Appellants (Plaintiff-Petitioners below) v. Zanita PANGAN, M.D., Bernard Poracky, M.D., M.O. Sacris, M.D. and Porter Memorial Hospital, Appellees (Defendant-Respondents below)
• Court: Indiana Appellate Court

Page 37

466 N.E.2d 37

Paul SPOLJARIC, Bruce Spoljaric, Individually and as Husband and Wife; Kimberly, Philip & Heather Spoljaric all Minors b/n/f Bruce Spoljaric Appellants (Plaintiff-Petitioners below) v. Zanita PANGAN, M.D., Bernard Poracky, M.D., M.O. Sacris M.D. and Porter Memorial Hospital, Appellees (Defendant-Respondents below)

No. 3-583A129.

Court of Appeals of Indiana Third District.

July 10, 1984.

Stephen B. Caplin, Indianapolis, Jeffrey D. Salberg, Lasser, Salberg & Ruff, Merrillville, for appellants.

David C. Jensen, Maureen Johns Grimmer, Eichhorn, Eichhorn & Link, Hammond, for appellees.

GARRARD, Judge.

Paul and Bruce Spoljaric and their children, Kimberly, Philip and Heather (the Spoljarics) appeal the trial court's grant of summary judgment in favor of Doctors Zanita Pangan, Bernard Poracky and M.O. Sacris (the doctors) and the Porter Memorial Hospital (the hospital).

The doctors and the hospital are health care providers under the Indiana Medical Malpractice Act (the Act), IC 16-9.5-1-1 et seq. On June 9, 1981, the Spoljarics filed their proposed complaint pursuant to the terms of the Act. Subsequently, the doctors and the hospital filed motions for preliminary determinations seeking the dismissal of the complaint on the ground that there was no cause of action recognizable in Indiana for the wrongful birth of a normal child or on the alternative ground that the complaint was barred by the running of the applicable two-year statute of limitations. ¹

The trial court, considering Paula Spoljaric's answers to interrogatories, entered summary judgment ² in favor of the doctors and the hospital holding that there was a valid statute of limitations defense and that "an action for wrongful birth or for wrongful conception is not a recognizable cause of action" in the State of Indiana.

The Spoljarics raise four issues on appeal:

I. Whether it was necessary for them to affirmatively plead fraudulent concealment in a reply to the affirmative defense of the statute of limitations.

II. Whether there is a genuine issue of material fact as to when the physician-patient relationship ended.

III. Whether Sections 1 and 2 of the Act violate Article I, Section 12 of the Indiana Constitution and the Fourteenth Amendment of the United States Constitution.

IV. Whether allegations of negligence in the performance of sterilization surgery present a claim upon which relief can be granted.

I. Requirement of pleading fraudulent concealment.

In granting the motion for summary judgment, the trial court stated, "There does not appear in the record any stated defense of fraudulent concealment by the Plaintiffs as being an issue in this case as a defense to the statute of limitations argument." The Spoljarics misconstrue this statement as a requirement that they plead fraudulent concealment in a reply to the answer which raised the statute of limitations defense. Such a reply was not required. Adams v. Luros (1980), Ind.App., 406 N.E.2d 1199. However, the Spoljarics were not able to rely on the bare allegations of their complaint were faced with the motions for summary judgment filed by the doctors and the hospital. Johnson v. Padilla (1982), Ind.App., 433 N.E.2d 393. While the movant has the initial burden of proving there is no genuine issue of material fact for trial, upon such showing, the non-movant must demonstrate the existence of a genuine issue. Id. Whether the trial court erred by failing to recognize the effect of fraudulent concealment on the statute of limitations defense depends on whether the Spoljarics sufficiently raised the issue in Paula Spoljaric's answers to interrogatories, which will be considered below.

II. Existence of genuine issue of material fact; fraudulent concealment.

The following facts before the trial court were undisputed. The Spoljarics employed Dr. Pangan to assist with the delivery of their second child, Heather, who was born August 7, 1978. They thereafter employed Dr. Pangan to sterilize Paula by a procedure known as a laparoscopic bilateral tubal ligation. He performed the operation at the hospital on October 16, 1978. After the operation, Doctor Sacris ordered further testing to determine whether Paula had been successfully sterilized. At some time in October or November of 1978, Dr. Poracky performed that test, a salpingogram, at the hospital. Inexplicably neither evidence of the test results nor of any effort by Spoljarics to discover them appear in the record.

Around July of 1979, Paula became pregnant and discovered that fact four to six weeks later. On May 7, 1980, she gave birth to the Spoljarics' third child, Kimberly. The Spoljarics' complaint was filed June 9, 1981.

On these facts, the doctors and the hospital filed motions to dismiss based on the running of the statute of limitations.

The statute of limitations applicable here is IC 16-9.5-3-1. ³ It provides in part that no medical malpractice claim may be brought "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" statute rather than a "discovery" statute, Colbert v. Waitt (1982), Ind.App., 445 N.E.2d 1000; Carrow v. Streeter (1980), Ind.App., 410 N.E.2d 1369; Toth v. Lenk (1975), 164 Ind.App. 618, 330 N.E.2d 336, although some discomfort with this classification has been expressed. See Alwood v. Davis (1980), Ind.App., 411 N.E.2d 759.

The Spoljarics attempted to introduce the issue of fraudulent concealment to toll the running of the statute of limitations. Fraudulent concealment as it relates to medical malpractice claims in Indiana was first discussed in Guy v. Schuldt (1956), 236 Ind. 101, 138 N.E.2d 891. ⁴ The significance of the doctrine of fraudulent concealment is that it operates to estop a defendant from asserting a statute of limitations defense when that person, by deception or the violation of a duty, has concealed material facts from the plaintiff preventing discovery of a wrong. Guy, supra; Colbert v. Waitt, supra. According to Guy, this equitable estoppel can arise either from an active effort to conceal a cause of action or from the failure to disclose material information where a fiduciary or confidential relationship between the parties exists.

In the context of a medical malpractice claim, the focus is on the duties arising under the physician-patient relationship. We followed Guy in Toth v. Lenk (1975), 164 Ind.App. 618, 330 N.E.2d 336 where we said:

"The duty of the physician to disclose that which he knows, or in the exercise of reasonable care should have known, satisfies the requirement of conduct and constitutes a constructive fraud.

Under this analysis the constructive fraud would terminate with the termination of the physician-patient relationship and the statute would commence to run.

It must be emphasized, however, that the nature of the exception is equitable and relies upon an estoppel theory.

Accordingly, where the patient learns of the malpractice or learns information which would lead to discovery of the malpractice if the patient exercised diligence to discover, the statute will commence to run."

Toth, 330 N.E.2d at 339, 340 (citations omitted).

Fraudulent concealment thus tolls the running of the statute of limitations until either the end of the physician-patient relationship or the discovery of the malpractice by the patient or of information which in the exercise of reasonable diligence would lead to its discovery.

In addition to the facts already stated establishing a prima facie case that the statute of limitations had run, the trial court had before it Paula's answers to interrogatories. As products of discovery these answers are to be liberally construed in the Spoljarics' favor in considering the doctors' and hospital's motions for summary judgment. Adams v. Luros (1980), Ind.App., 406 N.E.2d 1199. Summary judgment is not appropriate when the information before the court reveals a good faith dispute as to the inferences to be drawn from the facts.

The relevant interrogatories propounded to Paula read as follows:

"19. Please state the name and business address of each and every physician, surgeon, osteopath, drugless practitioner, Christian Science healer, or chiropractor who has professionally observed and/or attended to you from 1970 to this date.

20. For each such physician, surgeon, osteopath, drugless practitioner, Christian Science healer, or chiropractor so identified above, state the date or dates of such observation or attendance and the place or places of such attendance or observation."

Transcript, p. 35.

Paula's answers, if assumed to be responsive to the interrogatories, were that she was professionally observed or attended to by Doctors Pangan and Sacris through June of 1979 and by Doctor Poracky in October or November of 1978. No evidence is offered of any office visit, consultation or other contact with any of the doctors after November of 1978. The Spoljarics contend nonetheless that the answers establish that Doctors Pangan and Sacris and the hospital had a duty to disclose through June of 1979 and that there is a question of fact as to whether Doctor Poracky had such a duty beyond November of 1978. As support for the latter contention the Spoljarics cite Adams, supra where the court stated in a footnote:

"We feel, under Guy, that it is theoretically possible that a duty to disclose continues as long as there is a physician-patient relationship, even though there may not be actual consultation for a period of time. In short, we do not think the relationship necessarily, as a matter of law, ends at the last consultation."

Adams, supra, 406 N.E.2d at 1202, n. 2.

The Adams court went on to state certain facts to be considered in determining when the physician-patient relationship ended. It said:

"There are many factors that enter into the analysis of determining when a physician-patient relationship ends. The...