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Szamocki v. Anonymous Doctor

Court of Appeals of Indiana

February 6, 2017

Jessica Szamocki, Appellant-Plaintiff,
v.
Anonymous Doctor and Anonymous Group, Appellees-Defendants, and Stephen Robertson, Commissioner, Indiana Department of Insurance Third Party-Respondent

         Appeal from the Marion Superior Court The Honorable Patrick J. Dietrick, Judge Trial Court Cause No. 49D12-1505-PL-17261

          Attorneys for Appellant David J. Cutshaw Kelley J. Johnson Gabriel A. Hawkins Cohen & Malad, LLP

          Attorneys for Appellee Brett T. Clayton Kelly H. Eddy Eichhorn & Eichhorn, LLP

          Crone, Judge.

         Case Summary

          [¶1] Jessica Szamocki filed a proposed medical malpractice complaint against Anonymous Doctor and Anonymous Group (collectively "A.D."). A.D. sought summary judgment on the ground that Szamocki's complaint was barred by the applicable statute of limitations. Following a hearing, the trial court granted summary judgment in favor of A.D. Szamocki now appeals. Concluding that Szamocki's claim is indeed time-barred, we affirm summary judgment in favor of A.D.

         Facts and Procedural History

          [¶2] On September 26, 2012, twenty-three-year-old Szamocki went to see A.D. for an initial appointment. Szamocki was referred to A.D., a gastroenterologist, for treatment regarding "stomach issues." Appellant's App. Vol. V at 37. After performing a colon exam and biopsy on Szamocki, on November 12, 2012, A.D. prescribed Lialda (mesalamine) to Szamocki and instructed her to take one tablet per day.[1] A.D. did not inform Szamocki regarding any risks of taking mesalamine, including that mesalamine can cause renal impairment and that the manufacturer of Lialda recommends that a patient's renal function be evaluated both prior to and periodically during treatment with the drug.

         [¶3] On December 10, 2012, Szamocki had a follow-up appointment with A.D.[2] At that appointment, A.D. told Szamocki to continue taking one tablet of mesalamine per day. He did not inform her of any risks of taking mesalamine and he did not monitor her renal function. He told her to schedule a follow-up visit in five to six months "to see how [she] was doing on the [mesalamine]" and to call him "if there are any troubles in the interim." Id. at 38; Appellant's App. Vol. II at 51. Szamocki returned to A.D.'s office at some point shortly after that appointment to pick up more samples of mesalamine from the receptionist. Szamocki never scheduled a follow-up appointment.

         [¶4] In March of 2013, Szamocki developed a rash on her arms and also started to develop symptoms of arthritis. She went to her primary care physician's office and had lab tests performed. The nurse practitioner at the primary care physician's office noted concerns about Szamocki's "drastically reduced" renal function. Appellant's App. Vol. III at 98. Accordingly, Szamocki was referred to a nephrologist, Dr. Richard Hellman.

         [¶5] Szamocki attended an appointment with Dr. Hellman on April 9, 2013. Dr. Hellman told Szamocki that she was suffering from acute renal failure and that mesalamine, among several other possibilities, may be the cause. However, Dr. Hellman did not tell Szamocki to stop taking mesalamine. On April 15, 2013, Szamocki went to see Dr. Michael Stack, a rheumatologist. Dr. Stack did not tell her to stop taking mesalamine. Then, on May 1, 2013, Szamocki went to see Dr. Michael Sweet, a homeopathic doctor. Dr. Sweet informed Szamocki that her muscles were weak while taking mesalamine. The next day, May 2, 2013, Szamocki decided to stop taking mesalamine due to the side effects.

         [¶6] Thereafter, Szamocki began seeing nephrologist Dr. Melissa Anderson. On September 18, 2013, Dr. Anderson noted that she believed that Szamocki's renal problems were due to mesalamine use. Szamocki had a biopsy performed and, on May 5, 2014, she was told that her renal failure may be caused by chronic use of NSAIDs, medical or herbal supplements, or infection. During a May 23, 2014, appointment with Dr. Anderson, Szamocki was again told that her renal failure may be caused by mesalamine. On September 17, 2014, at an appointment with Dr. Anderson, Szamocki told Dr. Anderson that she wanted to know if it was "clear" that mesalamine caused her renal failure because her family had "recommended that she pursue legal action against the prescribing physician." Appellant's App. Vol. IV at 230. Dr. Anderson told Szamocki that it was not a clear-cut diagnosis. Id. Szamocki continued to see Dr. Anderson and other specialists until January 21, 2015. On February 17, 2015, Szamocki went to see Dr. Evamaria Anvari, a nephrologist at the Cleveland Clinic, when she obtained a diagnosis that she believed confirmed that her renal failure was "more likely than not due to the [mesalamine]." Appellant's App. Vol. V at 40.

         [¶7] Szamocki filed her proposed medical malpractice complaint against A.D. On February 25, 2015, alleging that he negligently prescribed mesalamine and failed to monitor her renal function while she was taking the drug. A.D. filed a motion for preliminary determination and motion for summary judgment, asserting the statute of limitations as a defense to the allegations in the proposed complaint. Szamocki responded to the motion for summary judgment with a designation of evidence. A.D. replied and filed a motion to strike certain affidavit statements on hearsay grounds, as well as certain medical records. A summary judgment hearing was held on January 11, 2016. On March 1, 2016, ...


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