Van Dusen v. Stotts

Decision Date08 July 1999
Docket NumberNo. 03S00-9711-CV-631.,03S00-9711-CV-631.
Citation712 N.E.2d 491
PartiesDelbert VAN DUSEN, M.D., David M. O'Brien, M.D., and Columbus Regional Hospital, Appellants (Defendants Below), v. William H. STOTTS and Sharon Stotts, Appellees (Plaintiffs Below).
CourtIndiana Supreme Court

Michael D. Conner, Mark E. Spitzer, Browne Spitzer Herriman Stephenson Holderead & Musser, Marion, IN, Attorneys for Appellants.

Patrick W. Harrison, Beck & Harrison, Columbus, IN, Attorney for Appellee.

SELBY, J.

This case and two other cases currently pending before this Court address the constitutionality of the two-year medical malpractice statute of limitations contained in Indiana Code section 34-18-7-1(b) (1998) (repealing section 27-12-7-1(b) (1993)). In each of these cases, plaintiffs challenge the constitutionality of the statute of limitations under the Open Courts Clause of Article I, Section 12 and the Privileges and Immunities Clause of Article I, Section 23 of the Indiana Constitution.1

In Martin v. Richey, 711 N.E.2d 1273 (Ind.1999) [hereinafter Martin], the lead case we decide today, plaintiff was unable to discover that she had breast cancer and that it had spread to her lymph nodes until more than two years after the asserted negligent misdiagnosis. We rejected her argument that the statute of limitations is unconstitutional on its face, but held instead that it was unconstitutional as applied to the facts of that case. Specifically, we held in Martin that, under Article I, Section 12, the two-year occurrence-based statute of limitations may not constitutionally be applied to preclude the filing of a claim before a plaintiff either knows of the malpractice and resulting injury, or discovers facts, which in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury. To do so would be to impose an impossible condition on her access to the courts and pursuit of her tort remedy. We also held that Article I, Section 23, as interpreted by Collins v. Day, 644 N.E.2d 72, 80 (Ind.1994), requires that the statute of limitations be "uniformly applicable" to all medical malpractice victims, and that, therefore, the statute could not be applied to preclude a plaintiff from filing a claim simply because she has a disease which has a long latency period and which may not manifest significant pain or debilitating symptoms until several years after the asserted misdiagnosis.

As we discuss more fully below, plaintiff and appellee below, William H. Stotts ("Stotts"), like the plaintiff in Martin, suffered from cancer and was unaware that he had cancer and that it had spread to his lymph nodes until more than two years following the alleged negligent act. He also had no information that, in the exercise of reasonable diligence, should have led to the discovery of the alleged malpractice and his resulting condition during the statutory period. Given these undisputed facts, and consistent with our holdings in Martin, we agree with the trial court that the two-year occurrence-based medical malpractice statute of limitations may not constitutionally be applied to Stotts.

Our decision on this point does not completely dispose of this appeal, however, because this case also requires us to determine how generally to construe or reconstrue the statute of limitations to avoid its unconstitutional application in this case and in future cases. Then we must apply the statute, as we have construed it, to the specific facts here.

We conclude that section 34-18-7-1(b) permits plaintiffs like Martin and the Stottses to file their claims within two years of the date when they discover the malpractice and the resulting injury or facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury. We also conclude that in this case the two-year period was triggered when, in January of 1995, Dr. Allen informed Stotts that he had incurable cancer and that the biopsy slides may have been misread in 1992. Plaintiffs' claim of medical malpractice, therefore, was timely filed within the twoyear statutory period.

Accordingly, we affirm the trial court's decision granting summary judgment for plaintiffs and denying defendants' motion. We remand for further proceedings not inconsistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

The facts in this case are undisputed. William H. Stotts went to his family doctor in June of 1992 because he had a head cold, and, while he was there, his doctor did a routine examination of his prostate. Because his doctor thought that his prostate felt somewhat abnormal, he did a PSA blood test, and the blood test showed an elevation that might indicate that Stotts had prostate cancer. Although Stotts had no other symptoms of prostate cancer, his doctor referred Stotts to Dr. Robert Allen, a urologist, for a followup evaluation and Dr. Allen examined Stotts in July 1992. He found a very small tumor, performed a needle biopsy on the tumor, and sent the sample to the Columbus Regional Hospital Pathology Department ("hospital") to determine whether the cells were malignant.

Appellant Dr. Delbert Van Dusen and appellant Dr. David O'Brien, who, together with the hospital, were defendants below ("defendants"), read the biopsy. In a report dated July 24, 1992, Dr. Van Dusen noted that, although there were some cells that were mildly atypical, the tissue was benign. On July 27, 1992, Dr. O'Brien confirmed Dr. Van Dusen's diagnosis that the tissue was benign. Dr. Allen relied on this diagnosis, and his office informed Stotts and his wife that the biopsy results showed no cancer. Stotts was relieved.

Around Thanksgiving of 1994, Stotts experienced pain and swelling in his groin area and his lower back. When pain medication and ice packs did not eliminate his pain or relieve the swelling, Stotts's doctor, who suspected a lumbar strain, referred him for a CT scan and ordered another PSA blood test. The CT scan showed an abnormality and the PSA blood levels were high. A follow-up bone scan suggested that metastasis was a possibility. Stotts's doctor then referred him again to Dr. Allen in January of 1995. After reviewing all of his tests and examining Stotts, Dr. Allen concluded that Stotts had metastatic disease; that the metastatic disease was the result of his prostate tumor, which previously had been reported as noncancerous; and that the cancer had spread to his lymph nodes and bones. Dr. Allen informed Stotts that he had incurable prostate cancer.

At the time Dr. Allen diagnosed his prostate cancer on or about January 25, 1995, Stotts and his wife inquired as to whether the initial biopsy in 1992 was improperly read, and Dr. Allen stated that this was a possibility.

Dr. Allen treated Stotts with monthly injections until he became too sick to work and lost his health insurance. When Stotts could no longer afford the monthly injections, he opted for the one-time expense of surgical castration, which occurred in March of 1995. For a while his cancer was isolated, but by December 1995, his cancer had begun to spread again.

In January of 1996, Stotts's urologist had the 1992 biopsy reread by a pathologist at the hospital, and that pathologist read the biopsy as malignant. In February of 1996, Dr. Allen informed Stotts that he likely had three to six months to live. Dr. Allen also informed Stotts that he had had the 1992 biopsy slides reread, that they showed a malignancy, and that they had been badly misread in 1992.

Two months later, on April 3, 1996, Stotts and his wife filed a complaint alleging negligence with the Indiana Department of Insurance. That complaint named Columbus Regional Hospital and "Dr. X" as defendants. Thereafter they filed several amended complaints. On April 10, 1996, they filed a second amended complaint in which Dr. Van Dusen was first named as a defendant, and, on July 30,1996, they filed a fourth amended complaint which added Dr. O'Brien as a defendant. Specifically, Stotts alleged that in July 1992, the hospital and Drs. Van Dusen and O'Brien negligently failed to diagnose Stotts's prostate cancer; that had the biopsy been properly read in 1992, Stotts's cancer would have been extremely treatable; and that, as the result of the misdiagnosis, Stotts will die of cancer. William Stotts, in fact, did die shortly before argument on the crossmotions for summary judgment in this case.

On September 19,1996, the Stottses filed a complaint for declaratory judgment requesting that the court declare the two-year medical malpractice statute of limitations, Indiana Code section 34-18-7-1(b), unconstitutional on its face under Article I, Section 12 and Article 1, Section 23 of the Indiana Constitution. Defendants moved for a preliminary determination of law and summary judgment on the statute of limitations question, and plaintiffs opposed defendants' motion for summary judgment and also moved for summary judgment in their favor.

After holding a hearing on the cross-motions for summary judgment, the trial court granted the Stottses' motion for summary judgment. Specifically, the court held that the two-year occurrence-based statute of limitations was unconstitutional as applied to the facts of the case upon which there is no genuine issue of material fact. The court reasoned that the undisputed evidence establishes that "plaintiffs did not and could not have known, discovered or ascertained, even with the use of reasonable care, that the cancer, which was allegedly misdiagnosed on July 14, 1992, existed during the limitations period provided by IND. CODE § 27-12-7-1." (R. at 279-80.) The court emphasized that "a statute of limitations cannot run and expire before the injured party has any way to discover or ascertain that he has been injured or that a tort has occurred." (R. at 280.)

Defendants challenge the decision below. This Court has jurisdiction pursuant to Indiana Appellate Rule 4(A)(8), which grants ...

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