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03/29/88 WILLIAM S. WALTERS v. LEE RINKER AND

Filed: March 29, 1988.

WILLIAM S. WALTERS, D.O. PETITIONER-APPELLANT
v.
LEE RINKER AND DELORES RINKER, RESPONDENTS-APPELLEES



APPEAL FROM THE ST. JOSEPH SUPERIOR COURT, The Honorable Sanford M. Brook, Judge, Cause No. R-7626.

Garrard, P.j., Hoffman, J. and Neal, J., Concur.

Author: Garrard

GARRARD, P.J.

This is an interlocutory appeal from the denial of William Walters' motion for preliminary determination of his affirmative defense in a medical malpractice action brought by Lee and Delores Rinker. The motion was treated as one for summary judgment by agreement of the parties. The following issues are raised:

1) whether a genuine issue of material fact exists as to whether the two year statute of limitations applicable to medical malpractice actions was tolled under the doctrine of continuing wrong or fraudulent concealment; and

2) whether the two year statute of limitations on medical malpractice actions as applied in this case violates the Indiana Constitution.

We reverse.

Summary judgment is appropriate where there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Indiana Rules of Procedure, Trial Rule 56(C). In reviewing a grant or denial of summary judgment, we look at the facts which are favorable to the non-moving party and reasonable inferences to be drawn therefrom. Frady v. Hedgcock (1986), Ind. App., 497 N.E.2d 620, 622 quoting Penwell v. Western and Southern Life Insurance Co. (1985). Ind. App., 474 N.E.2d 1042, 1044.

The facts most favorable to the Rinkers reveal that in the summer of 1983, Lee Rinker complained of pain in his groin area to his family doctor, G. R. Hershberger. Dr. Hershberger referred Rinker to Dr. Mortola who examined Rinker on July 14, 1983 and found a lump in Rinker's right thigh area. On August 3, 1983, Drs. Mortola and Hershberger surgically removed a tumor which was sent to the pathology department of the hospital where the surgery was performed. Dr. Mortola's hospital report described the tumor as "somewhat incapsulated" but "possibly malignant." Dr. William Walters, a pathologist with the hospital, examined the tumor, consulted with other pathologists, and stated in his report that conclusive evidence of malignancy was not present and that changes in the lymph node from the thigh area were of an active rather than a neoplastic nature. On August 16, 1983 Dr. Hershberger received Walters' report and stated in his own notes, "reactive change in [the] lymph node [from the] r[ight] upper thigh no malignancy seen." Dr. Hershberger informed Rinker that the tumor was not malignant. Dr. Hershberger checked Rinker's groin area on October 29, 1984 and noted it was "ok." During December 1984, Rinker began suffering from a recurring cold but neither a chiropractor nor a pulmonary specialist found anything wrong. Rinker's health declined through the spring of 1985 and on March 26, 1985, Rinker's son reported to Dr. Hershberger that Rinker had lost a great deal of weight. Rinker was admitted to Mayo Clinic in March 1985 and on April 5, 1985 was diagnosed as having large cell lymphoma.

The Rinkers filed their proposed complaint against Dr. Walters with the Indiana Insurance Commissioner on July 10, 1986. Dr. Walters invoked the jurisdiction of the St. Joseph County Superior Court for the limited purpose of considering his motion for preliminary determination of his affirmative defense which was based upon the two year statute of limitations applicable to medical malpractice claims. The parties agreed to treat the motion as one for summary judgment. The trial court denied the motion but granted Dr. Walters' motion for certification of an interlocutory appeal We granted Dr. Walters' petition for interlocutory appeal.

Indiana's statute of limitations on medical malpractice actions is an occurrence rather than a discovery statute. IC 16-9.5-3-1(a) (1982 & Supp. 1986); Colbert v. Waitt (1982), Ind. App., 445 N.E.2d 1000, 1002. Hence suit must be filed within two years from the date the alleged negligent act occurred rather than from when it was discovered. Two doctrines, however, have emerged which purport to relieve some of the hardship of the occurrence nature of our statute. Under the continuing wrong theory, which is applicable where an entire course of conduct combines to produce an injury, the statute of limitations is tolled so that it does not commence running until the continuing wrongful act ceases. Frady v. Hedgcock (1986), Ind. App., 497 N.E.2d 620 citing Montgomery v. Crum (1928), 199 Ind. 660, 161 N.E.2d 251. The fraudulent concealment doctrine is applicable where the physician, either by deception or by violation of his fiduciary duty, fails to disclose material information to the patient. Ferrell v. Geisler (1987), Ind. App., 505 N.E.2d 137 citing Spoljaric v. Pangan (1984), Ind. App., 466 N.E.2d 37 trans. denied ; Nahmias v. Trustees of Indiana University (1983), Ind. App., 444 N.E.2d 1024 trans. denied. The physician's failure to disclose what he knows or reasonably should have known is said to constitute a constructive fraud and operates to toll the statute of limitations until the physician-patient relationship terminates or the patient discovers information which in the exercise of due diligence would lead to discovery of the malpractice. Id. citing Frady v. Hedgcock (1986), Ind. App., 497 N.E.2d 620; Spoljaric v. Pangan (1984), Ind. App., 466 N.E.2d 37 trans. denied; Nahmias v. Trustees of Indiana University (1983), Ind. App., 444 N.E.2d 1024 trans. denied.

The Rinkers argue that a genuine issue of material fact exists as to whether the doctrine of continuing wrong or the doctrine of fraudulent concealment tolled the statute of limitations in this case so that their suit was timely filed. They base their argument for the applicability of both doctrines upon the concept that Dr. Hershberger, Dr. Mortola and Dr. Walters constituted a therapeutic team of physicians whose relationship with Lee Rinker continued until Lee Rinker was no longer under the care of Dr. Hershberger. For the application of this team theory to the doctrine of continuing wrong, the Rinkers argue that Dr. Hershberger's continued reliance upon Dr. Walters' alleged misdiagnosis constituted a continuing wrong which created an injury by preventing them from discovering Lee had cancer prior to April 5, 1985. For application of the team of physicians theory to the doctrine of fraudulent concealment, the Rinkers argue that as long as Dr. Hershberger continued to rely upon Dr. Walters' alleged misdiagnosis in treating Lee, a physician-patient relationship existed between Dr. Walters and Lee Rinker so that the tolling of the statute of limitations continued until Lee no longer was under Dr. Hershberger's care, presumably in March of 1985. Conversely, Dr. Walters argues that the doctrines of continuing wrong and fraudulent concealment not are not applicable to this case because no physician-patient relationship existed between himself and Lee Rinker or, if one did exist, it terminated on August 3, 1983 when he diagnosed the tumor. This court must therefore determine the nature and duration of the relationship between a pathologist who diagnoses a tumor and the person from whom it is removed when the tumor is sent to the pathologist by the person's family doctor.

Dr. Walters first contends that he did not examine, see, treat or prescribe medication for Lee Rinker, one of which acts he argues is a prerequisite for the existence of a physician-patient relationship under the holding of Johnson v. Padilla (1982), Ind. App., 433 N.E.2d 393. Johnson, however, does not stand for the proposition that a physician must examine, see, treat or prescribe medication in order for a physician-patient relationship to exist. In Johnson, this court merely held that a supervising physician who did no more than approve a subordinate's decision to operate was entitled to summary judgment on a complaint which alleged that the operation was negligently performed. We have discovered no medical malpractice cases which hold that a physician must physically examine, treat or prescribe medication for another person in order for a physician-patient relationship to exist. Furthermore, the following language from our medical malpractice statute indicates that such actions are not required in order for liability to be imposed:

"Malpractice" means any tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by ...


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