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Physician v. Rogers

Court of Appeals of Indiana

November 7, 2014

ANONYMOUS PHYSICIAN and ANONYMOUS MEDICAL GROUP, Appellants-Defendants,
v.
RICHARD LOUCKS ROGERS, Appellee-Plaintiff

APPEAL FROM THE ALLEN SUPERIOR COURT. The Honorable Stanley A. Levine, Judge. Cause No. 02D01-1212-CT-624.

ATTORNEYS FOR APPELLANTS: MARK W. BAEVERSTAD, ANDREW L. PALMISON, Rothberg Logan & Warsco LLP, Fort Wayne, Indiana; KARL L. MULVANEY, JESSICA WHELAN, Bingham Greenebaum Doll LLP, Indianapolis, Indiana.

ATTORNEY FOR APPELLEE: DAVID VAN GILDER, Van Gilder & Trzynka, P.C., Fort Wayne, Indiana.

ROBB, Judge. BAKER, J., concurs. KIRSCH, J., dissents with opinion.

OPINION

Page 193

ROBB, Judge

Case Summary and Issue

Richard Rogers, pro se, filed with the Indiana Department of Insurance a proposed complaint for medical malpractice on March 4, 2011 against Anonymous Physician and Anonymous Medical Group (collectively, " Physican" ). Physician filed in the trial court a Motion for Preliminary Determination and for Summary Judgment, alleging Rogers's complaint was not timely filed under the Indiana Medical Malpractice Act. The trial court initially granted summary judgment to Physician but later granted Rogers's motion to correct error and denied summary judgment. The parties present several issues on appeal,

Page 194

which we consolidate as the following single issue: whether the trial court erred in denying summary judgment upon finding that genuine issues of material fact exist as to whether Rogers timely filed his proposed complaint. Concluding that Rogers's claim was not timely filed under the Indiana Medical Malpractice Act and summary judgment for Physician was appropriate, we reverse.

Facts and Procedural History[1]

Rogers was experiencing painless blood in his urine and made his first appointment with Physician, a licensed urologist, on August 4, 2006. At that appointment, Physician performed a renal ultrasound which showed several lesions on Rogers's bladder and performed a flexible cystoscopy which showed defects on both sides of his bladder walls. Rogers was diagnosed with bladder cancer less than two weeks later. Physician placed Rogers on chemotherapy with periodic cystoscopy examinations so the cancer could be monitored. Between August 2006 and January 2009, Physician performed several cystoscopies on Rogers. Before performing each cystoscopy, Physician always disinfected the urology equipment with Cidex OPA; he did so without informing Rogers that manufacturer warnings, Cidex OPA package warnings, and medical literature had all advised that Cidex OPA was contraindicated for patients with bladder cancer. Rogers suffered no ill effects from the use of Cidex OPA until March 2008.

After a cystoscopy on March 10, 2008, Rogers experienced minor itching. Rogers was treated with Benadryl. On July 14, 2008, Rogers had another cystoscopy and another allergic reaction ensued. His symptoms worsened--he experienced redness and swelling in both his face and lips. Rogers was treated with Solu-Medrol and Benadryl at Lutheran Hospital. On January 7, 2009, Rogers had another cystoscopy performed, followed by his third allergic reaction. Rogers experienced swelling in his hands and developed a rash, so Physician prescribed him steroids. Later in the day, however, Rogers went to Dupont Hospital where he was further treated with intravenous steroids and Benadryl; he was also admitted for overnight observation.

On January 22, 2009, Rogers had an appointment with Dr. Mahan Menon (" Allergist" ).[2] After an initial consultation with Rogers, Allergist performed a skin test that confirmed Rogers was allergic to Cidex OPA. Allergist informed Rogers and Physician of the Cidex OPA allergy by letter on March 6, 2009. Although Physician remained Rogers's urologist until July 2009, Physician did not use Cidex OPA to disinfect the urology equipment used on Rogers after the allergy diagnosis.

Rogers, pro se, filed a proposed complaint with the Indiana Department of Insurance on March 4, 2011, alleging that the treatment rendered by Physician from August 2006 through July 2009 was negligent and below the appropriate standard of care. Physician responded by filing a Motion for Preliminary Determination and for Summary Judgment in the trial court, alleging that Rogers's claim was barred by the Medical Malpractice Act's two-year statute of limitations period. The trial court granted the motion. Rogers filed a motion to correct error, alleging there was

Page 195

a genuine issue of material fact as to how the statute of limitations applied. After a hearing, the trial court granted Rogers's motion to correct error and denied Physician's motion for summary judgment. This appeal followed.[3]

Discussion and Decision

I. Standard of Review

Physician appeals the trial court's grant of Rogers's motion to correct error. It is well established that we review a trial court's ruling on a motion to correct error for an abuse of discretion. Old Utica Sch. Pres., Inc. v. Utica Twp., 7 N.E.3d 327, 330 (Ind.Ct.App. 2014), trans. denied. " An abuse of discretion occurs when the trial court's decision is contrary to the logic and effect of the facts and circumstances before it or the reasonable inferences therefrom." Id.

Here, the effect of granting the motion to correct error was to set aside the entry of summary judgment for Physician. When a trial court's denial of summary judgment is challenged on appeal, " our well-settled standard of review is the same as it is for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law." Kroger Co. v. Plonski, 930 N.E.2d 1, 4-5 (Ind. 2010); Ind. Trial Rule 56(C). A factual issue is material if it bears on the ultimate resolution of a relevant issue, and it is genuine if it is incapable of being conclusively foreclosed by reference to undisputed facts. Simon Prop. Grp., L.P. v. Michigan Sporting Goods Distribs., Inc., 837 N.E.2d 1058, 1070 (Ind.Ct.App. 2005), trans. denied. The moving party bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). If the moving party fails to meet that burden, summary judgment is improper; if it succeeds, then the non-moving party must come forward with evidence establishing the existence of a genuine issue of material fact. Id. " All factual inferences must be construed in favor of the non-moving party, and all doubts as to the existence of a material issue must be resolved against the moving party." Plonski, 930 N.E.2d at 5. " If the nonmovant fails to meet his burden, and the law is with the movant, summary judgment should be granted." CFS, LLC v. Bank of America, 962 N.E.2d 151, 152 (Ind.Ct.App. 2012). On ...


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