Dermatology Associates, P.C. and Sonya Campbell Johnson, M.D., Appellants-Petitioners,
Elizabeth C. White, Appellee-Respondent,
Commissioner of Indiana Department of Insurance, and Douglas J. Hill, Esq., Medical Review Panel Chair, Third Party Defendants.
from the Marion Superior Court The Honorable David J. Dreyer,
Judge Trial Court Cause No. 49D10-1506-PL-18385
Attorneys for Appellants Chad J. Bradford O'Bryan, Brown
and Toner, PLLC Indianapolis, Indiana Karl L. Mulvaney
Jessica Whelan Bingham Greenebaum Doll LLP Indianapolis,
Attorney for Appellee Gerald B. Coleman Coleman Stevenson,
LLP Indianapolis, Indiana.
Summary and Issue
On September 7, 2012, Elizabeth White visited Dr. Sonya
Campbell Johnson at Dermatology Associates, P.C.
(collectively, the "Providers"), for laser hair
removal on her face. Due to a reaction between the makeup
White was wearing and the treatment, part of White's face
was burned and remained discolored thereafter. In 2013, White
filed a complaint for medical negligence against the
Providers directly with the trial court, seeking damages in
an amount not greater than $15, 000 for her injury. Later,
White moved to dismiss that complaint. The trial court
granted the motion to dismiss without prejudice, and on
November 18, 2014, White filed a proposed complaint with the
Indiana Department of Insurance. The Providers filed a
petition for preliminary determination and a motion for
summary judgment alleging White failed to timely file her
claim with the Department of Insurance. The trial court
denied the motion for summary judgment but certified its
order for interlocutory appeal. The Providers raise one
restated issue for our review: whether the trial court erred
in denying their motion for summary judgment. Concluding the
statute of limitations bars White's action and the
Providers are entitled to judgment as a matter of law, we
and Procedural History
White went to the offices of Dermatology Associates on
September 7, 2012, for a laser hair removal procedure on her
face. A few minutes after Dr. Johnson began performing the
procedure, she stopped and asked if White had anything on her
face. White replied that she was wearing mineral powder, and
Dr. Johnson said the laser reacts to minerals. Dr. Johnson
cleansed White's face and completed the procedure. The
part of White's face that had been in contact with the
laser prior to the cleansing immediately discolored, but Dr.
Johnson said the discoloration would go away by the end of
the day. Instead, the discoloration worsened and White's
skin peeled. Over time, the discoloration improved but did
not completely go away.
On November 20, 2013, White filed a complaint for medical
negligence in the Marion Superior Court 14, alleging the
Providers were negligent in performing the laser hair
removal. On December 12, 2013, White filed a motion for leave
to amend her complaint to add a declaration that she was
seeking damages in an amount not greater than $15,
The trial court granted her motion and her amended complaint
In October 2014, the Providers filed a motion for summary
judgment. White did not respond to the motion for summary
judgment but instead filed a motion to dismiss her complaint
without prejudice because she "has learned during the
pendency of her action that her bodily injury is more serious
than previously believed . . . and therefore believes that
Fifteen Thousand and 00/100 Dollars ($15, 000.00) will be
insufficient compensation for her bodily injury."
Appellants' Appendix at 84. Attached to her motion was
her affidavit, stating in pertinent part:
2. On September 7, 2012, I went to the offices of the
[Providers] to have a laser hair removal procedure performed
by [Dr. Johnson].
3. [Dr. Johnson] performed the procedure in a negligent
manner resulting in injury burning to my face.
4. I experienced immediate discoloring and burning. I thought
the discoloring would disappear; however, discoloring still
remains and therefore, I do not believe that [$15, 000] is
sufficient to compensate me for the injury to my face.
5. I have asked my attorney to take the necessary steps so
that I can pursue additional monetary damages to compensate
me for my injury.
Id. at 88. The trial court granted White's
motion to dismiss her complaint on November 12, 2014.
On November 18, 2014, White filed a proposed complaint with
the Indiana Department of Insurance, which was identical in
all respects to the amended complaint she had filed in the
trial court minus the limited damages declaration. On June 4,
2015, the Providers filed a Petition for Preliminary
Determination and Motion for Summary Judgment in Marion
Superior Court 10, alleging White's proposed complaint
before the Department of Insurance was untimely. The trial
court denied the motion for summary judgment on June 19,
2015. The Providers then filed a motion to reconsider, and,
in the alternative, a motion to certify the order denying
summary judgment for interlocutory appeal. Following a
hearing, the trial court denied the Providers' motion to
reconsider but certified the order denying summary judgment
for interlocutory appeal.
Standard of Review
Pursuant to Indiana Code section 34-18-11-1, a trial court
may assert jurisdiction over threshold issues and
preliminarily determine an issue of law or fact while the
proposed complaint is pending before the medical review panel
in the Department of Insurance. Haggerty v. Anonymous
Party 1, 998 N.E.2d 286, 294 (Ind.Ct.App. 2013). The
grant or denial of summary judgment on a motion for
preliminary determination is subject to the same standard of
review as any other summary judgment ruling. Jeffrey v.
Methodist Hosps., 956 N.E.2d 151, 154 (Ind.Ct.App.
When reviewing the grant or denial of summary judgment, we
apply the same standard as the trial court. Summary judgment
is proper only when the designated evidence shows that there
is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. All facts and
reasonable inferences therefrom are construed in a light most
favorable to the nonmovant. The statute of limitations
defense is particularly suitable as a basis for summary
judgment. When the moving party asserts the statute of
limitations as an affirmative defense and establishes that
the action was commenced beyond the statutory period, the
burden shifts to the nonmovant to establish an issue of fact
material to a theory that avoids the defense. Any doubts as
to the existence of a material issue are resolved in favor of
Anonymous Physician v. Wininger, 998 N.E.2d 749, 751
(Ind.Ct.App. 2013) (citations ...