van Bronckhorst v. Taube, 2--574A124

• Decision Date: 18 February 1976
• Docket Number: No. 2--574A124,2--574A124
• Citation: 341 N.E.2d 791,168 Ind.App. 132
• Parties: Ir. Ch. H. van BRONCKHORST, Appellant, v. Jack I. TAUBE, M.D., and Joseph B. Quigley, M.D., Appellees.
• Court: Indiana Appellate Court

Page 791

341 N.E.2d 791

168 Ind.App. 132

Ir. Ch. H. van BRONCKHORST, Appellant, v. Jack I. TAUBE, M.D., and Joseph B. Quigley, M.D., Appellees.

No. 2--574A124.

Court of Appeals of Indiana, Second District.

Feb. 18, 1976.

Rehearing Denied March 17, 1976.

Ir. Ch. H. van Bronckhorst, Pro Se.

James V. Donadio, Margaret C. Attridge, Ice, Miller, Donadio & Ryan, James E. Rocap, Jr., Rocap, Rocap, Reese & Young, Indianapolis, for appellees.

SULLIVAN, Judge.

Plaintiff Ir. Ch. H. van Bronckhorst filed this malpractice action against Doctors Jack I. Taube and Joseph B. Quigley on June 18, 1973. The doctors moved to dismiss the complaint under Ind. Rules of Procedure, TR. 12(B)(6), as being barred by the Malpractice Statute of Limitations, Ind.Ann.Stat. 34--4--19--1 (Burns Code Ed. 1973). The defendants' motions were granted. Plaintiff appeals the dismissal.

For purposes of this appeal, the allegations of van Bronckhorst's complaint must be taken as true. Millen v. Dorrah (1974), Ind.App., 316 N.E.2d 403; Sanders v. Stewart (1973), Ind.App., 298 N.E.2d 509; Gladis v. Melloh (1971), 149 Ind.App. 466, 273 N.E.2d 767. Moreover, every reasonable inference and intendment must be drawn in his favor from the alleged facts. Citizens Nat'l Bank of Grant County v. First Nat'l Bank of Marion (1975), Ind App., 331 N.E.2d 471; Farm Bureau Ins. Co. v. Clinton (1971), 149 Ind.App. 36, 269 N.E.2d 780.

The complaint consisting of six full legal pages alleges in lengthy detail the 'facts' we must accept as true. The allegations are as follows: On January 16, 1963, van Bronckhorst went to Dr. Taube 'to have dirt, which was blown in his eye, taken out.' After examining plaintiff, Taube told him that the examination had revealed 'a high pressure in his right eye, which though has nothing to do with the dirt nor any eye disease . . ..' Taube performed what he had told van Bronckhorst would be 'a very simple surgery' upon the right eye. Plaintiff maintains that 'as a result of this so-called simple surgery, plaintiff have (sic) lost his right eye sight . . ..'

Dr. Taube continued to treat van Bronckhorst for some five weeks after the surgery. During this period, in response to plaintiff's repeated queries as to the nature of his condition, Taube told van Bronckhorst that his right eye was damaged by glaucoma which would 'jump over to plaintiff's left eye in approximately five (5) years, and that plaintiff would be entirely blind within ten (10) years.' When asked what could be done about the glaucoma, Taube repeatedly answered as per the verbatim allegation of van Bronckhorst's complaint:

'Nothing, probably if you, after certain time, would be entirely blind and the glaucoma is ripe for a surgery, but that is of future concern, at this time I really don't know anything more which could be done, you have not to return more for further eyes treatment, unless certain additional eye troubles made it necessary to come back.'

After Taube's last repetition of this gloomy prognosis, van Bronckhorst, 'almost sure that defendant Taube has (sic) injured plaintiff's right eye, was intending to bring an action for injury . . ..' Plaintiff consulted an attorney and wrote a letter to the Consulate General of the Netherlands (plaintiff is a Dutch immigrant who arrived in this country in 1962) inquiring as to what could be done to get redress from Dr. Taube. Plaintiff was advised to seek additional medical opinion to corroborate his suspicions before taking any legal action. Acting upon this advice, van Bronckhorst went to see defendant Dr. Quigley in July of 1963.

When van Bronckhorst met Quigley in July, he told the doctor 'the purpose of his visit', and was advised to return for a thorough examination on October 8, 1963. At the examination, plaintiff told Quigley about the surgery performed by Taube and Taube's opinion that plaintiff suffered from glaucoma. He further informed Quigley that he, van Bronckhorst, suspected that Taube's surgery, rather than any glaucoma, was the cause of the loss of his right eye sight. Plaintiff then told Quigley that he wanted to know 'the cause of the disappearance of that right eye vision; and . . . what can be done to restore that right eye sight.'

Van Bronckhorst alleges that, following the examination Quigley told him that 'plaintiff's right eye was damaged by glaucoma and not by the act of the doctor; (t)hat he, defendant Quigley, at that time did not saw (sic) the slightest chance to restore plaintiff's right eye vision; (t)hat the glaucoma will jump over from plaintiff's right eye to his left eye within some years to come, and after approximately an equal additional time plaintiff would become entirely blind.'

Plaintiff alleges that, after hearing Quigley's opinion:

'. . . in reliance upon defendant Quigley's professional judgment, plaintiff not only dropped his intended action against defendant Taube because then he thought that he had made a false and written accusation, but defendant Quigley's professional judgment also caused that he lived (sic) in fear because his thought was cought (sic) with fear that there will come a time that he would be wholly blind.'

Some eight years after his visit to Quigley, van Bronckhorst, still without sight in his right eye, volunteered to help Mrs. Chloe Bredahl, a neighbor, by chauffering her to her regular doctor appointments. Mrs. Bredahl, wary of plaintiff's ability to see well enough to drive, induced him to accompany her on her regular visit to her own eye specialist, Dr. K. H. Stephens, on November 29, 1971.

After examining plaintiff, Dr. Stephens disclosed his belief that plaintiff was not suffering from glaucoma but that van Bronckhorst had 'a good eye hidden behind the damage, even a better eye than his left eye, but because that right eye is all the time trying to see around the damage . . . his right eye focus is out of line, which made it impossible for me to open (sic) that eye, since, by doing that, he will see double . . ..' Dr. Stephens concluded his diagnosis, as alleged in the complaint with these words: 'If he came to me within a year after the damage was caused, I could surely safe (sic) that eye.'

Less than two years after his visit to Dr. Stephens, van Bronckhorst filed this action against both Taube and Quigley for malpractice.

Plaintiff's pro se complaint is drawn in two 'legal paragraphs', which, read in the light most favorable to plaintiff, allege alternative theories of recovery. Paragraph 2 charges both doctors with malpractice--Taube in his diagnosis and surgery, Quigley in his diagnosis and failure to remedy the damage to plaintiff's right eye allegedly caused by Taube's surgery. Presumably in anticipation of a statute of limitations defense, van Bronckhorst further alleged in paragraph 2 that the defendants were guilty of a concerted fraudulent concealment of the true nature of plaintiff's condition which estops them from raising the statutory bar. In paragraph 1, van Bronckhorst alleged that if his malpractice action is barred by the statute of limitations, then the doctors are liable in damages for fraudulently preventing him from timely bringing suit. In dismissing plaintiff's entire complaint on defendants' TR. 12(B)(6) motions, the trial court did not distinguish between plaintiff's alternative theories. Since plaintiff's arguments herein relate only to the propriety of dismissing the malpractice action, we do not consider nor comment upon the cognizability of an action sounding in fraud as alleged in paragraph 1. See AP. 8.3(A). ¹

Van Bronckhorst asserts that the dismissal of his malpractice action is contrary to law in two respects:

1. Defendants' alleged fraudulent concealment of the true nature of plaintiff's condition permits avoidance of the statute of limitations.

2. The special medical malpractice statute of limitations is unconstitutional as violative of the Equal Protection clause of the Fourteenth Amendment to the United States Constitution and Art. 1, § 23 of the Indiana Constitution. ²

We reverse without reaching plaintiff's constitutional argument, holding that the complaint alleges in equity a fraudulent concealment sufficient to withstand a TR. 12(B)(6) motion.

I FRAUDULENT CONCEALMENT OF CAUSE OF ACTION AS EQUITABLE DOCTRINE ESTOPS SUCCESSFUL ASSERTION OF STATUTE OF LIMITATIONS

The trial court granted the doctors' respective motions to dismiss on the basis of Ind.Ann.Stat. § 34--4--19--1 (Burns Code Ed. 1973), which reads:

'34--4--19--1 (2--627). Malpractice--Limitation of actions.--No action of any kind for damages, whether brought in contract or tort, based upon professional services rendered or which should have been rendered, shall be brought, commenced or maintained, in any of the courts of this state against physicians, dentists, surgeons, hospitals, sanitariums, or others, unless said action is filed within two (2) years from the date of the act, omission or neglect complained of.'

The trial court held that plaintiff's complaint is, on its face, barred by the above limitations statute since the defendants' alleged malpractice occurred in 1963 and the action was not filed until June 18, 1973.

Van Bronckhorst asserts that his malpractice action is timely because filed within two years of his discovery, by way of Dr. Stephens' diagnosis on November 29, 1971, of his cause of action which had prior thereto been fraudulently concealed by defendants. Plaintiff's argument is bottomed in part on his contention that Ind.Ann.Stat. § 34--1--2--9 (Burns Code Ed. 1973) is a statutory exception to the malpractice statute of limitations. Ind.Ann.Stat. § 34--1--2--9 reads as follows:

'34--1--2--9 (2--609). Concealment of cause of action.--If any person liable to an action, shall conceal the fact from the knowledge of the person entitled thereto, the action may be commenced at any time within the period of limitation, after the discovery of the cause of action.'

To the extent that plaintiff's...