Szamocki v. Anonymous Doctor & Anonymous Grp.
| Citation | 70 N.E.3d 419 |
| Decision Date | 06 February 2017 |
| Docket Number | Court of Appeals Case No. 49A02-1603-PL-520 |
| Parties | Jessica SZAMOCKI, Appellant-Plaintiff, v. ANONYMOUS DOCTOR AND ANONYMOUS GROUP, Appellees-Defendants, and Stephen Robertson, Commissioner, Indiana Department of Insurance Third Party-Respondent |
| Court | Indiana Appellate Court |
Attorneys for Appellant : David J. Cutshaw, Kelley J. Johnson, Gabriel A. Hawkins, Cohen & Malad, LLP, Indianapolis, Indiana.
Attorneys for Appellee : Brett T. Clayton, Kelly H. Eddy, Eichhorn & Eichhorn, LLP, Indianapolis, Indiana.
[1] Jessica Szamocki filed a proposed medical malpractice complaint against Anonymous Doctor and Anonymous Group (collectively "A.D."). A.D. sought summary judgment on the ground that Szamocki's complaint was barred by the applicable statute of limitations. Following a hearing, the trial court granted summary judgment in favor of A.D. Szamocki now appeals. Concluding that Szamocki's claim is indeed time-barred, we affirm summary judgment in favor of A.D.
[2] On September 26, 2012, twenty-three-year-old Szamocki went to see A.D. for an initial appointment. Szamocki was referred to A.D., a gastroenterologist, for treatment regarding "stomach issues." Appellant's App. Vol. V at 37. After performing a colon exam and biopsy on Szamocki, on November 12, 2012, A.D. prescribed Lialda
(mesalamine ) to Szamocki and instructed her to take one tablet per day.1 A.D. did not inform Szamocki regarding any risks of taking mesalamine, including that mesalamine can cause renal impairment and that the manufacturer of Lialda recommends that a patient's renal function be evaluated both prior to and periodically during treatment with the drug.
[3] On December 10, 2012, Szamocki had a follow-up appointment with A.D.2 At that appointment, A.D. told Szamocki to continue taking one tablet of mesalamine
per day. He did not inform her of any risks of taking mesalamine and he did not monitor her renal function. He told her to schedule a follow-up visit in five to six months "to see how [she] was doing on the [mesalamine ]" and to call him "if there are any troubles in the interim." Id . at 38; Appellant's App. Vol. II at 51. Szamocki returned to A.D.'s office at some point shortly after that appointment to pick up more samples of mesalamine from the receptionist. Szamocki never scheduled a follow-up appointment.
[4] In March of 2013, Szamocki developed a rash on her arms and also started to develop symptoms of arthritis
. She went to her primary care physician's office and had lab tests performed. The nurse practitioner at the primary care physician's office noted concerns about Szamocki's "drastically reduced" renal function. Appellant's App. Vol. III at 98. Accordingly, Szamocki was referred to a nephrologist, Dr. Richard Hellman.
[5] Szamocki attended an appointment with Dr. Hellman on April 9, 2013. Dr. Hellman told Szamocki that she was suffering from acute renal failure
and that mesalamine, among several other possibilities, may be the cause. However, Dr. Hellman did not tell Szamocki to stop taking mesalamine. On April 15, 2013, Szamocki went to see Dr. Michael Stack, a rheumatologist. Dr. Stack did not tell her to stop taking mesalamine. Then, on May 1, 2013, Szamocki went to see Dr. Michael Sweet, a homeopathic doctor. Dr. Sweet informed Szamocki that her muscles were weak while taking mesalamine. The next day, May 2, 2013, Szamocki decided to stop taking mesalamine due to the side effects.
[6] Thereafter, Szamocki began seeing nephrologist Dr. Melissa Anderson. On September 18, 2013, Dr. Anderson noted that she believed that Szamocki's renal problems were due to mesalamine
use. Szamocki had a biopsy performed and, on May 5, 2014, she was told that her renal failure may be caused by chronic use of NSAIDs, medical or herbal supplements, or infection. During a May 23, 2014, appointment with Dr. Anderson, Szamocki was again told that her renal failure may be caused by mesalamine. On September 17, 2014, at an appointment with Dr. Anderson, Szamocki told Dr. Anderson that she wanted to know if it was "clear" that mesalamine caused her renal failure because her family had "recommended that she pursue legal action against the prescribing physician." Appellant's App. Vol. IV at 230. Dr. Anderson told Szamocki that it was not a clear-cut diagnosis. Id . Szamocki continued to see Dr. Anderson and other specialists until January 21, 2015. On February 17, 2015, Szamocki went to see Dr. Evamaria Anvari, a nephrologist at the Cleveland Clinic, when she obtained a diagnosis that she believed confirmed that her renal failure was "more likely than not due to the [mesalamine ]." Appellant's App. Vol. V at 40.
[7] Szamocki filed her proposed medical malpractice complaint against A.D. on February 25, 2015, alleging that he negligently prescribed mesalamine
and failed to monitor her renal function while she was taking the drug. A.D. filed a motion for preliminary determination and motion for summary judgment, asserting the statute of limitations as a defense to the allegations in the proposed complaint. Szamocki responded to the motion for summary judgment with a designation of evidence. A.D. replied and filed a motion to strike certain affidavit statements on hearsay grounds, as well as certain medical records. A summary judgment hearing was held on January 11, 2016. On March 1, 2016, the trial court entered its findings of fact and conclusions thereon granting summary judgment in favor of A.D. The court also granted A.D.'s motion to strike. This appeal ensued.
[8] Szamocki appeals the trial court's grant of summary judgment in favor of A.D. We review a grant or denial of a summary judgment motion de novo. Houser v. Kaufman , 972 N.E.2d 927, 933 (Ind. Ct. App. 2012), trans. denied . "Summary judgment is proper only if the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Id ;see Ind. Trial Rule 56(C). We construe the facts and reasonable inferences established by the designated evidence in favor of the non-moving party. David v. Kleckner , 9 N.E.3d 147, 149 (Ind. 2014). Moreover, when a medical malpractice defendant asserts the statute of limitations as an affirmative defense, that defendant "bears the burden of establishing that the action was commenced beyond that statutory period." Id . (citation omitted). Once the defendant meets that burden, the burden shifts to the plaintiff to establish "an issue of fact material to a theory that avoids the defense." Id .
[9] The Medical Malpractice Act's statute of limitations is found in Indiana Code Section 34-18-7-1(b) and provides in relevant part:
A claim, whether in contract or tort, may not be brought against a health care provider based upon a professional service 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....
This is an "occurrence-based" statute of limitations, "meaning that an action for medical malpractice generally must be filed within two years from the date the alleged negligent act occurred rather than from the date it was discovered." Houser , 972 N.E.2d at 933 (citation omitted).
[10] In support of summary judgment, A.D. argues that Szamocki's claim is time-barred because the alleged malpractice occurred when A.D. prescribed mesalamine on November 12, 2012, or at the latest on December 10, 2012, the date of Szamocki's last appointment with A.D., and thus the proposed complaint, filed on February 25, 2015, was filed outside the two-year occurrence-based statute of limitations. In response, Szamocki does not dispute that her last encounter with A.D. occurred on December 10, 2012. However, she argues that (1) the two-year statute of limitations was tolled until May 2, 2013, under the doctrine of continuing wrong, and (2) her complaint was filed within a reasonable time after she exercised reasonable diligence to discover the malpractice. We will address each argument in turn.
Section 1—The doctrine of continuing wrong is inapplicable to toll the statute of limitations beyond the date of the last physician-patient encounter.
[11] Szamocki first asserts that that the two-year occurrence-based statute of limitations was tolled under the doctrine of continuing wrong. "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 (2006). When this doctrine is applicable, the two-year statute of limitations period begins to run at the end of the continuing wrongful act. Id ."In order to apply the doctrine, the plaintiff must demonstrate that the alleged injury-producing conduct was of a continuous nature." Id .
[12] In her response to A.D.'s motion for summary judgment, Szamocki argued that A.D. was negligent both in prescribing mesalamine
and in failing to monitor her renal function while she was taking mesalamine. First, for the doctrine of continuing wrong to apply, a physician's conduct must be more than a single act. See Gradus
–
Pizlo v. Acton , 964 N.E.2d 865, 871 (Ind. Ct. App. 2012). This Court has determined that the prescription of medicine constitutes a single act of malpractice and not an entire course of conduct, such that the doctrine of continuing wrong does not apply. Id . Thus, in order to bring her claim within the continuing wrong doctrine, Szamocki maintains that, in addition to the act of prescribing mesalamine, A.D.'s alleged failure to monitor her renal function while she was taking the drug constituted a continuing wrong which tolled the statute of limitations until she decided to stop taking the medication on May 2, 2013.
[13] Our supreme court's opinion in Havens v. Ritchey , 582 N.E.2d 792 (Ind. 1991), is instructive here, as it recognized the seemingly...
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