Anonymous Doctor A v. Foreman

          Appeal 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, Indiana

          ATTORNEYS FOR APPELLEE Richard W. Morgan Jerome W. McKeever Pfeifer Morgan & Stesiak South Bend, Indiana

          MAY, JUDGE.

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         Discussion and Decision

         [¶5] 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).

         [¶6] 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).

         Statute of Limitations

         [¶7] 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 ...