LARRY ROBERT DAVID, II, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF LISA MARIE DAVID, DECEASED, Appellant (Respondent),
WILLIAM KLECKNER, M.D., Appellee (Petitioner)
Appeal from the Marion Superior Court, No. 49D13-1208-MI-30944. The Honorable Timothy W. Oakes, Judge. On Transfer from the Indiana Court of Appeals, No. 49A02-1301-MI-13.
ATTORNEYS FOR APPELLANT: Mark D. Gerth, Donald L. Dawson, Kightlinger & Gray, LLP, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: David D. Becsey, Zeigler Cohen & Koch, Indianapolis, Indiana.
Dickson, Chief Justice. Rucker, David, Massa, and Rush, JJ., concur.
Dickson, Chief Justice.
This appeal challenges a summary judgment in a wrongful death medical malpractice case brought by the deceased patient's husband as administrator of her estate. The defendant physician sought summary judgment on grounds that the plaintiff's complaint was barred by the applicable statute of limitations. The trial court granted the motion and, finding no reason for delay, entered final judgment against the plaintiff. The Court of Appeals affirmed in a memorandum decision.
David v. Kleckner, 989 N.E.2d 843
(Ind.Ct.App. 2013) (table). We now grant transfer and reverse the trial court.
In its review of a summary judgment, an appellate court applies the same standard as the trial court.
Overton v. Grillo, 896 N.E.2d 499, 502 (Ind. 2008). Summary judgment may be granted, or affirmed on appeal, only " if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). All facts and reasonable inferences established by the designated evidence are to be construed in favor of the non-moving party.
Overton, 896 N.E.2d at 502. 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. If established, the burden shifts to the plaintiff to establish " an issue of fact material to a theory that avoids the defense." Id. (quoting
Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000)).
In response to the defendant's motion for summary judgment, the plaintiff argued in the trial court, and argues on appeal, that (a) the complaint was filed within a reasonable time after the plaintiff discovered the malpractice and (b) the statute of limitations was tolled under the doctrine of fraudulent concealment, and the complaint was filed within a reasonable time after the concealment ceased.
Dr. William Kleckner was the family physician for Lisa David, the plaintiff's decedent, for approximately ten years until the time of her death on March 25, 2011. During her annual physical on November 24, 2008, Dr. Kleckner conducted a routine pap smear, the results of which indicated abnormalities. A second pap smear was conducted two months later, on January 28, 2009, which also detected abnormalities. The pathologist reviewing the second pap smear submitted a report to Dr. Kleckner stating " [e]ndocervical and endometrial biopsy is recommended if clinically indicated." Appellant's App'x at 270. On February 27, 2009, Dr. Kleckner performed an endometrial biopsy, but not an endocervical biopsy. The performed endometrial biopsy was negative for signs of cancer or other medical conditions. At Dr. Kleckner's direction, his medical assistant contacted Lisa on March 13, 2009, and told her, among other things, " All okay," " Looks fine," and " Came back clear." Id. at 31, 68, 231. No endocervical biopsy was ever performed, however, and Lisa was never told of the pathologist's recommendations regarding an endocervical biopsy. In the next five months, Lisa began to experience genital pain, discomfort, and bleeding. She saw a specialist in obstetrics and gynecology, Dr. Keith Bean, on September 1, 2009, although the parties dispute whether this was at the referral of Dr. Kleckner. Dr. Bean examined Lisa and detected a mass on Lisa's cervix, and on September 3, 2009, Dr. Bean's office informed Lisa that the mass was a cancerous tumor. The plaintiff contends, and Dr. Kleckner denies, that approximately one week after receiving this news, Dr. Kleckner assured Lisa that no tumor was present when he examined her on February 27, 2009--the date he performed the endometrial biopsy. Shortly after the discovery of her cervical tumor, Lisa began treatment for her cancer. Unfortunately, the treatment
was not successful, and Lisa died on ...