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
[¶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.
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. 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.
On December 10, 2012, Szamocki had a follow-up appointment
with A.D. 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
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.
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.
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.
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, ...