Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Anonymous Physician v. Kendra

Court of Appeals of Indiana

November 28, 2018

Anonymous Physician, Anonymous Medical Practice, Anonymous Hospital, Appellants-Petitioners,
v.
Michelle Kendra, as Personal Representative of the Estate of John Kendra, Deceased, Appellee-Respondent

          Interlocutory Appeal from the Lake Superior Court The Honorable John M. Sedia, Judge Trial Court Cause No. 45D01-1706-CT-139

          ATTORNEYS FOR APPELLANTS ANONYMOUS PHYSICIAN AND ANONYMOUS MEDICAL PRACTICE David C. Jensen Robert J. Feldt Eichhorn & Eichhorn, LLP Hammond, Indiana

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

          ATTORNEYS FOR APPELLEE David J. Cutshaw Kelley J. Johnson Gabriel A. Hawkins Cohen & Malad, LLP Indianapolis, Indiana

          CRONE, JUDGE.

         Case Summary

         [¶1] Anonymous Physician ("AP"), an employee of Anonymous Medical Practice ("AMP"), implanted a cardiac pacemaker with a defibrillator ("CRT-D") in John Kendra at Anonymous Hospital ("AH") in 2006. AP later performed other procedures related to the CRT-D. John died in 2012. In 2015, John's daughter, Michelle Kendra, as the personal representative of his estate, filed a proposed medical malpractice complaint against AP, AMP, and AH (collectively "Appellants") alleging that the CRT-D surgery and subsequent procedures were unnecessary. Appellants moved for summary judgment on the basis that Michelle's complaint was filed outside the two-year statutory limitation period for medical malpractice claims. Michelle argued that the relevant statute was unconstitutional as applied and therefore the limitation period should be tolled. The trial court agreed with Michelle and denied Appellants' summary judgment motion. Appellants contend that the trial court erred. We agree with Appellants and therefore reverse.

         Facts and Procedural History

         [¶2] In April 2006, sixty-three-year-old John was admitted to AH's emergency room and was diagnosed with congestive heart failure and chronic pulmonary obstruction, among other things. AP implanted a CRT-D on May 1, and John was discharged five days later. AP subsequently performed various procedures related to the CRT-D. John died on June 30, 2012, from congestive heart failure and chronic obstructive pulmonary disease.

         [¶3] On July 24, 2015, Michelle filed a proposed medical malpractice complaint against Appellants. The complaint alleged in pertinent part that as a result of AP's unspecified negligence, John "suffered severe and permanent physical injuries and disabilities, endured great pain and suffering, mental distress and anguish and trauma, and, incurred reasonable medical and related expenses." Appellants' App. Vol. 2 at 55.[1] In June 2017, Appellants filed a petition for preliminary determination and a motion for summary judgment asserting that Michelle's complaint was untimely filed. See Ind. Code § 34-18-7-1 (medical malpractice claim may not be brought unless filed within two years after date of alleged malpractice). In support of their motion, Appellants designated portions of Michelle's complaint and John's medical records.

         [¶4] Michelle filed an opposing memorandum, in which she asserted that the CRT-D was medically unnecessary and "was used as a basis" for AP to perform numerous other procedures. Appellants' App. Vol. 2 at 103. She also asserted that the statutory limitation period should be tolled because John "could not have known that he did not meet the criteria for the implantation" of a CRT-D. Id. at 104. In support of her memorandum, Michelle designated the affidavit of physician Dr. Nadim Nasir, Jr., as well as her own affidavit, which reads in pertinent part as follows:

4. No one in my family or in my acquaintance ever indicated that they had any awareness of [AP's] misstatements or potentially unnecessary procedures and surgeries.

5. I found out about [AP's] misstatements and potentially unnecessary procedures and surgeries in or around October of 2014 when I saw a newspaper article and a news story on television about the misrepresentations of [AP].

Id. at 121. Appellants filed a motion to strike both affidavits.

         [¶5] The trial court held a hearing on Appellants' motions and issued an order ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.