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Biedron v. Anonymous Physician 1

Court of Appeals of Indiana

July 18, 2018

Theresa Biedron, as the Personal Representative of the Estate of Louis Biedron, Deceased, Appellant-Respondent,
v.
Anonymous Physician 1, Anonymous Physician 2, Anonymous Medical Practice, and Anonymous Hospital, Appellees-Petitioners and G. Anthony Bertig, Chairman of the Medical Review Panel, and Stephen Robertson, as the Commissioner of the Indiana Department of Insurance, Third-Party Respondents, Anonymous Hospital, Anonymous Physician 1, Anonymous Physician 2, and Anonymous Medical Practice, Appellants-Petitioners,
v.
Sherri Sitko, as Personal Representative of the Estate of Dorothy Sullivan, Deceased, Appellee-Respondent, and G. Anthony Bertig, Chairman of the Medical Review Panel, and Stephen Robertson, as the Commissioner of the Indiana Department of Insurance, Third-Party Respondents Anonymous Hospital, Anonymous Physician, and Anonymous Medical Practice, Appellants-Petitioners,
v.
Susan Orr, as Personal Representative of the Estate of Patricia Poteet, Deceased, Appellee-Respondent, and G. Anthony Bertig, Chairman of the Medical Review Panel, and Stephen Robertson, as the Commissioner of the Indiana Department of Insurance, Third-Party Respondents

          Appeal from the Lake Superior Court The Honorable William E. Davis, Judge Trial Court Cause No. 45D05-1701-CT-10

          Interlocutory Appeal from the Lake Superior Court The Honorable Calvin D. Hawkins, Judge Trial Court Cause No. 45D02-1611-CT-105

          Interlocutory Appeal from the Lake Superior Court The Honorable Bruce D. Parent, Judge Trial Court Cause No. 45D04-1609-CT-180

          ATTORNEYS FOR THERESA BIEDRON, SHERRI SITKO, AND SUSAN ORR David J. Cutshaw Kelley J. Johnson Gabriel A. Hawkins Cohen & Malad, LLP Indianapolis, Indiana

          ATTORNEYS FOR ANONYMOUS HOSPITAL Brian J. Paul Andrew L. Campbell Melissa M. Orizondo Faegre Baker Daniels LLP Indianapolis, Indiana

          ATTORNEYS FOR ANONYMOUS PHYSICIANS AND ANONYMOUS MEDICAL PRACTICE David C. Jensen Robert J. Feldt Alyssa Stamatakos James L. Hough Eichhorn & Eichhorn, LLP Hammond, Indiana

          Crone, Judge.

         Case Summary

         [¶1] Louis Biedron, Dorothy Sullivan, and Patricia Poteet received treatment from one or two physicians employed by Anonymous Medical Practice ("AMP").[1]One of the physicians implanted cardiac pacemakers in all three patients at Anonymous Hospital ("AH"). Biedron died almost a year and a half after his surgery; Sullivan died during her surgery; and Poteet died almost a year and three months after her surgery.

         [¶2] Over nine years after Biedron's death, his widow, Theresa Biedron, as the personal representative of his estate, filed a proposed complaint against Anonymous Physician 1 ("AP1"), Anonymous Physician 2 ("AP2"), AMP, and AH (collectively "the Biedron Defendants"), asserting claims for medical malpractice and wrongful death. The Biedron Defendants moved for summary judgment on the basis that the complaint was filed outside the two-year statutory limitation period for those claims. In response, Theresa argued that the period should be tolled by the doctrine of fraudulent concealment, and she submitted a supporting affidavit from a physician. The Biedron Defendants moved to strike the affidavit as not being based on personal knowledge, among other things. The trial court issued a final appealable order granting the Biedron Defendants' motion to strike and motion for summary judgment.

         [¶3] Over seven years after Sullivan's death, her daughter, Sherri Sitko, as the personal representative of her estate, filed a proposed complaint against Anonymous Physician 1 ("AP1"), Anonymous Physician 2 ("AP2"), AMP, and AH (collectively "the Sitko Defendants"), asserting claims for medical malpractice and wrongful death. The Sitko Defendants moved for summary judgment on the basis that the complaint was untimely filed. In response, Sitko argued that the limitation period should be tolled by the doctrine of fraudulent concealment, and she submitted an affidavit from the same physician used by Theresa. The Sitko Defendants moved to strike the affidavit for largely the same reasons as those asserted by the Biedron Defendants. The trial court issued an order denying the Sitko Defendants' motion to strike and motion for summary judgment and certified its order for interlocutory appeal.

         [¶4] Over seven years after Poteet's death, her daughter, Susan Orr, as personal representative of her estate, filed a proposed complaint against Anonymous Physician ("AP"), AMP, and AH (collectively "the Orr Defendants"), asserting claims for medical malpractice and wrongful death. The Orr Defendants moved for summary judgment on the basis that the complaint was untimely filed. In response, Orr argued that the limitation period should be tolled by the doctrine of fraudulent concealment and submitted an affidavit from the same physician used by Theresa and Sitko. Orr also argued that the medical malpractice statute of limitations was unconstitutional as applied. The Orr Defendants filed a reply and a motion to strike the affidavit. Orr filed a motion to strike the Orr Defendants' reply, claiming that it raised issues not raised in their summary judgment motion. The trial court issued an order denying the Orr Defendants' motion to strike and motion for summary judgment and granting Orr's motion to strike and certified its order for interlocutory appeal.

         [¶5] This Court ultimately consolidated all three appeals. In the first appeal, Theresa argues that the trial court erred in granting the Biedron Defendants' motion for summary judgment on her wrongful death claims. In the second appeal, the Sitko Defendants argue that the trial court erred in denying their motion to strike and motion for summary judgment. And in the third appeal, the Orr Defendants argue that the trial court erred in granting Orr's motion to strike and in denying their motion to strike and motion for summary judgment. We rule in favor of the defendants in all respects and therefore affirm in part and reverse in part.

         Facts and Procedural History (Biedron)[2]

         [¶6] Biedron was born in 1931. In February 2004, he was diagnosed with congestive heart failure and was evaluated by AP1. According to AP1's treatment notes, "The need to insert a biventricular pacemaker [was] discussed. The risks, options and benefits of the procedure [were] thoroughly outlined, and questions were answered. The patient was agreeable to this, and therefore, directly admitted to [AH] on February 19, 2004." Biedron Appellant's App. Vol. 2 at 174. AP1 implanted a cardiac pacemaker ("CRT-P"), and Biedron was released from AH. In February 2005, after complaining of shortness of breath and swelling in his lower extremities, Biedron was treated at AH by AP2. On July 31, 2005, Biedron was found unresponsive and taken to AH, where cardiopulmonary resuscitation was attempted, but he died from what was diagnosed as cardiopulmonary arrest. His death certificate lists the causes of death as congestive heart failure and cirrhosis of the liver.

         [¶7] In October 2014, Biedron's widow Theresa, as personal representative of his estate, filed a proposed complaint for medical malpractice against the Biedron Defendants with the Indiana Department of Insurance ("IDOI").[3] The proposed complaint asserted malpractice claims based on AP1's implantation of a CRT-P instead of a cardiac pacemaker with a defibrillator ("CRT-D") and performance of unnecessary procedures such as stress tests and cardiac angiograms, as well as on various acts or omissions of the other Biedron Defendants, that allegedly resulted in Biedron's wrongful death. More specifically, the proposed complaint asserted a claim of malpractice against AP2 (apparently based on his knowledge that Biedron should have received a CRT-D), a claim against AMP based on the acts and omissions of AP1 and AP2 and other employees, and a claim against AH based on its negligent granting of credentials and privileges to AP1 and AP2.

         [¶8] The Biedron Defendants filed a petition for preliminary determination[4] and a motion for summary judgment, asserting that both the medical malpractice and the wrongful death claims were untimely filed. See Ind. Code §§ 34-18-7-1 (medical malpractice tort claim may not be brought unless filed within two years after date of alleged malpractice) and 34-23-1-1 (wrongful death claim shall be commenced by personal representative of decedent within two years of date of death); see also Ellenwine v. Fairley, 846 N.E.2d 657, 664-65 (Ind. 2006) (for adult victim of medical malpractice who dies within two years of occurrence of malpractice, (1) if death was caused by malpractice, malpractice claim terminates at patient's death, and wrongful death claim must be filed within two years of occurrence of malpractice; (2) if death was caused by something other than malpractice, malpractice claim must be filed within two years of occurrence of malpractice, and any wrongful death claim must be filed within two years of date of death).

         [¶9] In response, Theresa argued that the statutory limitation period should be tolled by the doctrine of fraudulent concealment, and she designated the affidavit of Dr. Nadim Nasir, Jr., which reads in pertinent part as follows:[5]

2. I have reviewed the medical records relative to AP1's treatment of the patient, Louis Biedron.
3. AP1 fell below the applicable standard of care for the following reasons:
a) Implanting a CRT pacemaker in the patient when the patient, in fact, needed a CRT Defibrillator - a device that would have saved the patient's life. At the time the CRT pacemaker was implanted, the patient had been diagnosed with Congestive Heart Failure and had an Ejection Fraction of less than 35% and had a prolonged QRS interval of > 120 msec. This patient met the criteria for implantation of a CRT-defibrillator; however, AP1 did not have defibrillator privileges; hence AP1 implanted a suboptimal device. By 2004, it was standard of care to place CRT[-]ICD and to limit implantation of CRT Pacemakers to patients who did not desire the additional life-saving benefits of the Implantable Cardioverter Defibrillator part of the CRT-ICD. AP1 failed to disclose this reasonable and more appropriate alternatives [sic] to the CRT[-]PPM, this disclosure would be mandatory for obtaining proper consent.
b) Failing to disclose alternatives violated the standard of care for obtaining proper consent wherein risks, benefits and alternatives of a procedure are discussed. This breach of duty was predicated on AP1's desire to recommend a procedure which he could perform for financial gain, rather than refer the patient to an Electrophysiologist for an expert evaluation of the patient's condition and CRT-ICD implantation. At that time, AP1 did not have privileges for ICD implantation at AH. The failure of AP1 to either properly inform Mr. Biedron on appropriate options or to refer him to the appropriate expert ultimately cost Louis Biedron his life.
4. AP2 fell below the standard of care when he continued with this facade in February of 2005 knowing that the pacemaker was inadequate therapy for this patient who instead needed a defibrillator, the prevailing standard of care nationally at that time. AP2 knowingly supported the negligent care and plan of action authored by AP1 rather than referring Mr. Biedron to a board certified Cardiac Electrophysiologist. If he did not know that ICD was the standard of care for Mr. Biedron, then he breached the standard of care due to his ignorance of this standard.
5. Having consciously hidden the alternative of a CRT[-]ICD, AP1 violated his duty to Mr. Biedron by withholding this option. Absent a full disclosure of the options available to him, neither Mr. Biedron nor any lay person could know that a pacemaker was not the appropriate device for his condition. Neither Mr. Biedron nor any lay person could know that he met the criteria for the implantation of a defibrillator. Mr. Biedron would have no idea or consideration that his doctor intentionally withheld vital life-saving options of therapy, and that this lie of omission was driven by financial motivations and not Mr. Biedron's best interests nor that his doctor did not have the credentials for a defibrillator implantation. A lay person would not know that he needed the referral to a Cardiac Electrophysiologist for expert evaluation in order to implant the appropriate life-saving device.

Biedron Appellant's App. Vol. 2 at 142-44.

         [¶10] The Biedron Defendants filed a motion to strike Dr. Nasir's affidavit that reads in relevant part as follows:

1. The affidavit of Dr. Nasir is not admissible evidence as to the only issue present in the current Petition for Preliminary Determination, namely, the application of the statute of limitations to [Theresa's] claim.
2. In Dr. Nasir's affidavit an attempt is made to inject the issue of whether [AP1 and AP2] complied with the standard of care. This issue has no bearing on whether the proposed complaint was timely filed. Further, the affidavit purports to summarize conversations [AP1 and AP2] had with Mr. Biedron, even though Dr. Nasir was not present, at any time, during Mr. Biedron's treatment. Therefore, Dr. Nasir has no personal knowledge regarding the interaction between Mr. Biedron and either [AP1 or AP2]. For these reasons, Dr. Nasir's affidavit must be stricken.
….
7. Further, Dr. Nasir's affidavit violates [Indiana Evidence Rule] 704(b) because Dr. Nasir testified to statements regarding the state of mind of [AP1 and AP2 and Biedron], and regarding the truth or falsity of allegations.… In paragraph 5, Dr. Nasir testified about what "[a] lay person would not know." But in this case, it is the knowledge of Mr. Biedron at issue, not an unnamed, average "lay person" that is relevant. Dr. Nasir did not - and cannot - offer opinions as to what Mr. Biedron knew or did not know. Rather his assertion about what "lay people" would know, or not know, is similarly speculative, without proper foundation, and inadmissible.
8. [Theresa] also uses Dr. Nasir's affidavit to incorrectly equate a violation of the standard of care with fraud. These two concepts are unrelated. There is no case law that permits this Court to find fraudulent concealment based upon expert testimony regarding the standard of care.

Id. at 220-24.

         [¶11] In August 2017, after a hearing on all pending motions, the trial court issued a final appealable order that reads in pertinent part as follows:

Upon review of the supporting documents, relevant case and statutory law, the Court now grants the petitions [for preliminary determination] and dismisses the claim of the Respondent/Plaintiff Theresa Biedron as personal representative of the Estate of Louis Biedron, deceased.
The pertinent parts of the affidavit of Dr. Nasir relating to the issues on the summary judgment are inadmissable [sic] comments on the Petitioner/Defendants Doctors' truthfulness and not on facts that would indicate concealment or fraud. The affidavit concerning these issues is ordered stricken.
The Summary Judgment as to the complaint before the malpractice board is beyond the statute of limitations and should be dismissed. The claim for wrongful death likewise is beyond the statute ...

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