Anonymous Doctor A, Anonymous Hospital B, and Anonymous Medical Facility C, Appellants-Defendants,
Carol Foreman, Appellee-Plaintiff
from the Fulton Circuit Court The Honorable Christopher Lee,
Judge Trial Court Cause No. 25C01-1801-CT-41
ATTORNEYS FOR APPELLANT Jason A. Scheele Ashley M.
Gilbert-Johnson Rothberg Logan & Warsco LLP Fort Wayne,
ATTORNEYS FOR APPELLEE Richard W. Morgan Jerome W. McKeever
Pfeifer Morgan & Stesiak South Bend, Indiana
Anonymous Doctor A, Anonymous Hospital B, and Anonymous
Medical Facility C (hereinafter "Medical
Providers") appeal the trial court's denial of their
motion for preliminary determination and summary judgment.
Medical Providers argue the trial court erred in denying
summary judgment because Carol Foreman filed suit outside the
timeframe allowed by the statute of limitations. We reverse
and remand with instructions for the trial court to enter
summary judgment in favor of Medical Providers.
and Procedural History
On November 25, 2015, Anonymous Doctor A surgically repaired
Foreman's hip fracture at Anonymous Hospital B. In the
course of surgery, Anonymous Doctor A inserted a femoral rod
into Foreman's femur. Post-surgery, Foreman returned for
follow-up visits, and Anonymous Doctor A ordered x-rays of
Foreman's femur. The x-rays did not show any fracture of
the femoral rod. However, on January 22, 2016, Foreman felt a
sudden pain in her groin area and was unable to walk. She
went to Anonymous Hospital B for an x-ray that revealed the
femoral rod had fractured. On January 23, 2016, surgeons in
Indianapolis performed revision surgery on Foreman.
Foreman continued to see Doctor A after the revision surgery
until May 2016. She initially believed the femoral rod
manufacturer was at fault for the rod's failure, and she
sent a claim to the manufacturer seeking compensation for the
hardware failure and revision surgery. However, on September
8, 2016, the manufacturer denied her claim.
On January 19, 2018, Foreman filed her proposed complaint
with the Indiana Department of Insurance and her complaint
for damages in the Fulton Circuit Court asserting Doctor A
negligently placed the femoral rod during surgery, which
resulted in the rod's fracture. On May 18, 2018, Medical
Providers filed a motion for preliminary determination and
summary judgment arguing Foreman's claims were barred by
the statute of limitations. The trial court held a hearing on
Medical Providers' motion on August 24, 2018, and issued
an order denying the motion on September 18, 2018. The trial
court certified its order denying summary judgment for
interlocutory appeal, and we accepted jurisdiction.
When reviewing the grant or denial of a motion for summary
judgment, we apply the same standard as the trial court:
whether there is a genuine issue of material fact and whether
the moving party is entitled to judgment as a matter of law.
Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d
968, 973 (Ind. 2005). We grant summary judgment "only if
the evidence sanctioned by Indiana Trial Rule 56(C) shows
that there is no genuine issue of material fact and the
moving party deserves judgment as a matter of law."
Id. Further, we construe all evidence in favor of
the nonmoving party and resolve all doubts as to the
existence of a material issue of fact against the moving
party. Id. While the moving party must put forth
evidence to support the motion, "the opposing party may
not rest on his pleadings, but must set forth specific facts,
using supporting materials contemplated by Trial Rule 56,
which demonstrate that summary judgment is not
appropriate." Conrad v. Waugh, 474 N.E.2d 130,
134 (Ind.Ct.App. 1985).
Consequently, the moving party bears the initial burden of
demonstrating the absence of a genuine issue of material
fact. Cole v. Gohmann, 727 N.E.2d 1111, 1113
(Ind.Ct.App. 2000). However, if the moving party establishes
that an action was filed outside the statute of limitations,
then "the burden shifts to the nonmovant to establish an
issue of fact material to a theory that avoids the
defense." Boggs v. Tri-State Radiology, Inc.,
730 N.E.2d 692, 695 (Ind. 2000).
The statute of limitations governing medical malpractice
actions centers on the date the alleged malpractice occurred.
It states a "claim, whether in contract or tort, may not
be brought against a health care provider upon professional
services or health care that was provided or that should have
been provided unless the claim is filed within two (2) years
after the date of the alleged act, omission, or
neglect." Ind. Code § 34-18-7-1. Thus, a
patient's time to file suit begins on the date of the
occurrence of the alleged malpractice. Palmer v.
Gorecki, 844 N.E.2d 149, 154 (Ind.Ct.App. 2006). Foreman
alleges Doctor A negligently inserted her femoral rod ...