Theresa Biedron, as the Personal Representative of the Estate of Louis Biedron, Deceased, Appellant-Respondent,
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,
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,
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
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.
Interlocutory Appeal from the Lake Superior Court The
Honorable Bruce D. Parent, Judge Trial Court Cause No.
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
ATTORNEYS FOR ANONYMOUS PHYSICIANS AND ANONYMOUS MEDICAL
PRACTICE David C. Jensen Robert J. Feldt Alyssa Stamatakos
James L. Hough Eichhorn & Eichhorn, LLP Hammond, Indiana
Louis Biedron, Dorothy Sullivan, and Patricia Poteet received
treatment from one or two physicians employed by Anonymous
Medical Practice ("AMP").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
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.
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.
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
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.
and Procedural History (Biedron)
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
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"). 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.
The Biedron Defendants filed a petition for preliminary
determination 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).
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
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
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
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
Biedron Appellant's App. Vol. 2 at 142-44.
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
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.
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
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 ...