Anonymous Physician, Anonymous Medical Practice, Anonymous Hospital, Appellants-Petitioners,
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.
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,
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.
and Procedural History
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
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. 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.
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
Id. at 121. Appellants filed a motion to strike both
The trial court held a hearing on Appellants' motions and
issued an order ...