A TTORNEY S FOR A PPELLANT A TTORNEY FOR A PPELLEE Mark D. Gerth David D. Becsey Donald L. Dawson Zeigler Cohen & Koch Kigh t linger & Gray, LLP Indianapolis, Indiana Indianapolis, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________
No. 49S02-1405- MI -355

L ARRY R OBERT D AVID , II, A S S PECIAL A DMINISTRATOR O F T HE E STATE OF L ISA M ARIE D AVID , D ECEASED , Appellant (Respondent)
,

v.

W ILLIAM K LECKNER , M.D., Appellee (P etitioner )

.

_________________________________ Appeal from the Marion Superior Court, No. 49D13-1208- MI -30944 The Honorable Timothy W. Oakes, Judge

_________________________________ On Transfer from the Indiana C ourt of Appeals, No. 49A02-1301- MI -13

_________________________________ May 28, 2014
Dickson, Chief Justice.

This appeal challenges a summary judgment in a wrongful death medical malpractice case brought by the deceased patient's husband as administrat or of her estate . The defendant physician sought summary judgment on grounds that the plaintiff's complaint was barred by the applicable statute of limitations. The trial court granted the motion and, finding no reason for delay, entered final judgment against the plaintiff. The Court of Appeals affirmed in a mem orandum decision. David v. Kleckner , No. 49A02-1301- MI -13, 989 N.E.2d 843 (Ind. Ct. App. June 14, 2013) (table). We now grant transfer and reverse the trial court.2 In its review of a summ ary judgment, an appellate court applies the same standard as the
trial court

. Overton v. Grillo , 896 N.E.2d 499, 502 (Ind. 2008). Summary judgment may be granted, or affirmed on appeal , only " if the designated evidentiary matter shows that there is no
g enuine issue as to any m a terial fact and that the moving party is entitled to a judgment as a ma tter of law. " Ind. Trial Rule 56(C) . All facts and reasonable inferences established by the desi gnated evidence are to be construed in favor of the non

- moving party. Overton , 896 N.E

. 2d at
502. When a medical ma l practice defendant asserts the statute of limitations as an affirmative defense, that defendant "bears the burden of establishing that the action was commenced beyond
that statutory period." Id

. If established, the burden shifts to the plaintiff to establish "an issue
of fact material to a th e ory that avoids the defense. " Id . (quoting Boggs v. Tri

- State Radiology,
Inc. , 730 N.E.2d 692, 6 95 (Ind. 2000)).

In response to the defendant's motion for s ummary judgment, the plaintiff argued in the trial court, and argues on appeal, that (a) the complaint was filed within a reason a ble time after
the plaintiff discovered the malpractice and (b) the statute of limitations was tolled under the
doctrine of fra udulent concealment
, and the complaint was filed within a reaso n able time after
the concealment ceased

. 1

Dr. William Kleckner was the family physician for Lisa David , the plaintiff's decedent, for approximately ten years until the time of her death on March 25, 2011. During her annual physical o n N ovember 24, 2008, Dr. Kleckner conducted a routine pap smear, the results of
which indicated abnorma l ities. A second pap smear was conducted two months later, on January 28, 2009 , which also detected abnorma lities. The pathologist reviewing the second pap smear submitted a report to Dr. Kleckner stating "[e]ndocervical and endometrial biopsy is reco mmended if clinically indicated." Appellant's App'x at 270. On February 27, 2009, Dr. Kleckner

pe r formed an e ndometrial biopsy, but not an endocervical biopsy. The performed endometrial
bio p sy was negative for signs of cancer or other medical conditions. At Dr. Kleckner's direction,
his medical a s sistant contacted Lisa on March 13, 2009, and told her, am ong oth er things, "A ll okay," "L ooks f ine," and "C ame back clear." Id

. at 31, 68 , 231

. No e n docervical biopsy was

1 Because we find the first issue determinative, we decline to address the claim of fraudulent co ncealment.3 ever performed, however, and Lisa was never told of the pathologist's recommend a tions regar ding an endocervical biopsy. In the next five months , L isa began to e x perience genital pain, di scomfort, and bleeding. She saw a specialist in obstetrics and gynecology, Dr. Keith Bean, on September 1, 2009, although the parties dispute whether this was at the referral of Dr. Kleckner.
Dr. Bean examined Lisa and detect ed a mass on Lisa's ce r vix , and o n September 3, 2009, Dr.
Bean's office informed Lisa that the mass was a cancerous tumor. The plaintiff co n tends, and Dr. Kleckner denies, that a pproximately one week after receiving this news, Dr. Kleckner a ssu red Lisa that no t u mor was present when he examined her on February 27, 2009

— the date he performed the endometrial biopsy

. Shortly after the di s covery of her cervical tumor , Lisa began treatment for her cancer. Unfortunately, the treatment was not su c ces sful
, and Lisa died on March 25, 2011.

I t was i n "mid to late February, 2011," that Lisa's husband, Larry David, "beca me susp icious of why Dr. Kleckner hadn't found any evidence of cancer or a tumor when he had last seen
Lisa." Id. at 184. He consult ed an attorney who provided medical information releases that Lisa signed and which enabled Larry on February 25, 2011, to obtain Dr. Kleckner's medical records, which he gave to the attorney for review by medical e x perts

. Larry states that i t was not unt il after Lisa's death on March 25, 2011
, that he learned " Dr. Kleckner had not pe r formed the re commended endocervical biopsy." Id. at 185. O n July 1, 2011, three months and seven days after Lisa's death, t he estate commenced this action by filing its pro posed co m plaint for damages with the Department of Insurance. Id . at 30. The co m plaint allege d that Dr. Kleckner negligently failed to perform the recommended endocervical biopsy and that this mi s take led to a late dia gnosis of Lisa's cancer, resulting i n a diminution in her chances of recei v ing effective treatment and ultimately her death

. Id. at 32

– 33. The pr o posed complaint was filed more than 28 months after Dr. Kleckner allegedly failed to perform the e n docervical biopsy.

Dr. Kleckner's motio n for summary judgment is based on the statute of limitations under the Indiana Medical Malpractice Act which provides in relevant part:
A c laim, whether in contract or tort, may not be brought against a health care provider based upon professional service s 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 al leged act, omission, or neglect . . .

.4 Ind

. Code § 34

- 18

- 7

- 1(b)

.

Subsequent case law, however, has ameliorated the harsh effect s resulting from literally applying this provision to prohibit every malpractice action commenced more than two years a fter the actual occurrence of the alleged act of medical negligence. In Martin v. Richey , 711 N.E.2d 1273 (Ind. 1999), w e reversed a summary judgment based on the medical malpra c tice statute of limitations where the plaintiff alleged medical negligence in the failure to diagnose and
treat breast cancer . She first learned of the cancer three years later and commence d her ac tion
within the next six months . This Court found the occurrence based statute of limitations unco nstitutional as a p plied: Stated another way, the medical malpractice stat ut e of limitations is unconstitutional as applied when plaintiff did not know or, in the exercise of reasonable diligence, could not have discovered that she had sustained an injury as a result of malpractice, because in such a case the statute of limitations would impose an impossible condition on plaintiff's access to courts and ability to pursue an otherwise valid tort claim. To hold otherwise would be to require a plaintiff to bring a claim for medical malpractice before becoming aware of her injury and damages, an essential element of any negligence claim, and this indeed would be b oarding the bus to topsy

- turvy land.
Id. at 1284 (footnote omitted)

. In Van Dusen v. Stotts , a companion case to Martin , we a nnounced the general rule that persons "unable to discover the malpractice and their resulting inj ury within the two

- year statutor y period" may "file their claims within two years of the date when they discover the malpractice and the resulting injury or facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpra c tice and the resulting injury. " 71 2 N.E.2d 491, 497 (Ind. 1999)

. Ensuing decisions of this Court, however, present arg u ably incongruent views regarding the general rule allowing a plaintiff an opportunity, in the exe r cise of reasonable diligence, to discover malpractice.

The following year, this Court addressed the application of Richey and Van Dusen to a medical malpractice claim alleging medical negligence regarding the detection of breast cancer.
We a f firmed summary judgment applying the two

- year statutory limitation period, explai ning:

[The plaintiff and plaintiff's decedent] had an 11

- month window to file a medical ma lpractice claim after knowledge of the injury, yet did not. We hold that as long as the sta tute of limitations does not shorten this window of time so unreasonably th at it is impra ctical for a plaintiff to file a claim at all . .

. it is constitutional as applied to that plaintiff.5 Bo ggs , 730 N.E.2d at 697

. Five years later, in Booth v. Wiley
, we synthesized the holdings in
Martin
, Van Dusen , and Boggs as fo l lows: Initially, a court must determine the date the alleged malpractice occurred and determine the discovery date

— the date when the claimant discovered the alleged malpractice and resulting injury, or possessed enough information that would have led a reasonabl y dil igent person to make such discovery. If the discovery date is more than two years beyond the date the malpractice occurred, the claimant has two years after discovery within which to initiate a malpractice action. But if the discovery date is within two years fo llowing the occurrence of the alleged malpractice, the statutory limitation period applies and the action must be initiated before the period expires, unless it is not reasonably po ssible for the claimant to present the claim in the time remai ning after discovery and b efore the end of the statutory period. In such cases where discovery occurs before the statutory deadline but there is insufficient time to file . . . we hold that such claimants must thereafter initiate their actions within a r easonable time. 839 N.E.2d 1168, 1172 (Ind. 2005) . In Booth , the plaintiff argued that he became aware of det eriorating vision about 11 months after having Lasik surgery but "did not reasonably suspect me dical malpractice" until about 25 months after th e surgery. Id. at 1174. We reversed summary jud g ment, concluding that there remained a genuine issue whether the facts should have led the plai n tiff, in the exercise of reasonable dil i gence , to discover the medical malpractice

.

In two subsequent cases, the Court focused primarily on the date the plaintiff discovered the injury resulting from the alleged malpractice, and little if any consideration was given to the point in time when the plaintiff possessed enough information to lead to the discove ry of the malpractice. In Brinkman v. Bueter , the Court declared that "[a] plaintiff does not need to be told malpractice occurred to trigger the statute of limitations," and " [n]othing prevented the [plaintiffs] from seeking further medical or legal advi ce." 879 N.E.2d 549, 555 (Ind. 2008) (cit ation omitted)

. The Brinkman C ourt did not discuss the synthesis presented in Booth nor did it provide any express analy sis regarding whether the discovery of the injury, standing alone, pr ovided sufficient cause to lead to the discovery of malpractice. Similarly, this opportunity for di scovery, as an element of determining the discovery or trigger date
, was not revisited in Ove r ton

. Without overruling or expressing disapproval of the di s covery opportunity elemen t holdings in
Booth and Van Dusen , the Overton court found its dec i sion controlled by Boggs and Brinkman
, and summarily declared that "the trigger date " was when the plaintiff "learned that she had ca n-6 cer," and that "nothing prevented" the plaintiff from tim e ly filing her complaint. Ove r ton , 896
N.E.2d at 504.

Contemporaneous with Overton , this Court also handed down Herron v. Anigbo , a med ical malpractice case commenced 33 months after the alleged malpractice . The actual holding in
Herron was: [O]nc e [the plaintiff] was informed of the potential of malpractice reasonable diligence required investigation and assertion of the claim within the limitations period, if that could have reasonably been accomplished. As of [the date he was so informed], four months remained to assert a claim, and [the plaintiff] did not file until thirteen months later. As a matter of law four months was sufficient time to get a claim on file unless [the plaintiff] offered evidence that he was not reasonably able to consult an attorney who could investigate and file any claim within the limit a tions period. 897 N.E.2d 444, 453 (Ind. 2008) . In dicta , however, the Herron C ourt declared, without citation to authority, that "reasonable diligence requires more than inaction by a patient who, b e fore the statute has expired, does or should know of both the injury or disease and the treatment that e ither cause d or failed to identify or improve it, even if there is no reason to suspect malpra c tice ."
Id. at 449 (emphasis added). Si gnificantly, however, Herron described the " trigger date " as the
date when "the plaintiff knew, or should have known, of the alleged symptom or cond i tion, and facts that in the exercise of reasonable diligence would lead to discovery of the potential of ma lpractice." Id. at 450. And Herron quoted with approval from Booth
, emphasizing that "the ult imate question becomes the time at which a patient 'either (1) knows of the malpractice and r esulting injury or ( 2 ) learns of facts that, in the exercise of reas onable diligence, should lead to the
dis co very of the malpractice and the resulting injury. ' " Id. at 448

– 49 ( quoting Booth
, 839 N.E.2d
at 1172 )

.

Last year, in Manley v. Sherer
, this Court again acknowledged the discovery opportunity
element : "In order for the date to be tri g gered, our case law requires that a plaintiff be aware of 'facts that, in the exercise of reasonable diligence, should lead to the dis co very of the malpractice and the resulting injury.'" 992 N.E.2d 670, 674 (Ind. 2013) ( quoting Boo th , 839 N.E. 2d at 1171 (quoting Van Dusen , 712 N.E.2d at 497) ) . And we applied the pri n ciple that, once a defendant

— as the party moving for summary judgment

— has established that the medical malpractice action
was filed outside the statute of limit a tions, the plaintiff then has the burden to establish "an issue7 of fact material to a theory that avoids the d e fense." Id. (quoting Boggs , 730 N.E.2d at 695). We reversed summary judgment finding "that there remains a genuine issue of material fact as to
both t he trigger date and, if within the two

- year limitation period, whether the plaintiffs filed their complaint within a re a sonable time." Id. at 675.

We conclude that neither Brinkman
, Overton , n or Herron should be read to undermine the discovery opportu nity element expressly recognized in Manley
, Van Dusen and Booth

. Thus, in determining whether a medical malpractice claim has been commenced within the me dical ma l practice statute of limitations, the discovery or trigger date is the point when a claimant either knows of the malpractice and resulting injury, or learns of facts that, in the exercise of re asonable diligence, should lead to the discovery of the malpractice and the resulting injury. D epending on the individual circumstances of each case, a pa tient's learning of the resul t ing disease or the onset of resulting symptoms may or may not constitute the discovery or trigger date. The issue to be determined is the point at which a particular claimant either k new of the malpra c tice and resulting injur y, or learn ed of facts that would have led a person of reasonable dil i gence to have discovered the malpractice and resulting injury. If this date is less than two years after the occurrence of the alleged malpractice, the statute of limitations bars the c laim unless it is not re ason a bly possible for the claimant to present the claim in the remaining time, in which case the claimant must do so within a reasonable time after the discovery or trigger date. Booth
, 839
N.E.2d at 1172. If such date is more tha n two years after the occurrence of the ma l practice , the claimant has two years within which to commence the action. Id.

In the present case, construing the facts and reasonable inferences established by the de signated evidence in favor of the non

- mo ving party, as we must, we find that the alleged malpra ctice (failure to perform an endocervical biopsy) occurred on February 27, 2009. On March 13, 2009, Dr. Kleckner's office assured Lisa that all was well. Over the next five months, Lisa b e gan to expe rience genital pain, discomfort, and bleeding and saw a specialist in obstetrics and gyn ecolog y on September 1, 2009. He detected a mass on Lisa's cervix, and on September 3, 2009,
i n formed Lisa that the mass was a cancerous tumor. Approximately one week later, Dr.
Kleckner assured Lisa that no tumor was present when he had examined her and performed the endometrial biopsy on February 27, 2009. This assur ance must be considered in evaluating8 when Lisa or David knew facts that would have reasonably led th em, in the exercise of reason able diligence, to discover the a l leged malpractice. See Herron , 897 N.E.2d at 451 ("Where the plaintiff knows of an il l ness or injury, but is assured by professionals that it is due to some cause other than malpractice, this fact can extend the period for reasonable discovery.") ; see also Halbe v. Weinberg , 717 N.E.2d 876, 882 (Ind. 1999). It was not until mid to late February, 2011, that Lisa's husband, Larry, became suspicious of why Dr. Kleckner hadn't found any evidence of ca ncer or a tumor when he had last seen Lisa. He promptly consulted an attorney, obtained Lisa's medical records, and learned on March 25, 2011 that Dr. Kleckner had failed to perform the re commended endocerv i cal biopsy. This action was co m menced on J uly 1, 2011

.

Because Dr. Kleckner established from the designated evidence that this action was commenced more than two years after the date of the alleged malpractice, the burden shifted to the plaintiff to show " an issue of fact material to a theory that avoids the d e fense." Manley , 992
N.E.2d at 674 ; He r ron , 897 N.E.2d at 448; Overton, 896 N.E.2d at 502 (all three cases quoting Boggs , 730 N.E.2d at 695)

. The plaintiff has ca r ried this burden. While it is clear when Lisa
beca me aware of her cervic al cancer, it is a disputed fact whe n she should have, in the exercise
of reasonable dil i gence, discovered whether Dr. Kleckner's failure to perform the endocervical biopsy caused or inhibited timely treatment. Moreover, the evidentiary facts, particularl y Dr.
Kleckner's assuran c es in early September, 2009

— that likely would have minimized the plai ntiff's suspicion and i n quiry

— support a reasonable infer ence that mid to late Fe bruary , 2011, when Larry D a vid first became suspicious of the possibility of malpr actice, was the point when Lisa or Larry David e i ther knew of the alleged malpractice and resulting injury, or learned of facts that, in the exercise of reasonable diligence, should have led to the discovery of the ma lpractice and the resulting i n jury. Th ere are no undi s puted facts that establish an earlier discovery or trigger date. Depending on the precise date in the period from "mid to late February" when Larry's suspicions were aroused, such discovery date may have been less than two years after the date of the alleged ma l practice, February 27, 2009 . In such case, as noted above, Lisa and David were obligated to in i tiate the malpractice action within a re a sonable time. Booth
, 839 N.E.2d at
1172

.9 We find that the holding in Manley applies equally here . In Manley , we found the d efendants were not entitled to summary judgment because " t here remain[ed] a genuine issue of

mat e rial fact as to both the trigger date and, if within the two

- year limitation period, whether the plaintiffs filed their complai nt within a reasonable time. " 992 N.E.2d at 675. The designated materials in the present case show that Larry promptly consulted an attorney after his suspicions

arose , obtained medical information release forms
, used those forms to obtain Lisa's medica l
records
, and then r e turn ed the medical records to his attorney for evaluation by medical experts. We find that it was not necessarily an unreasonable delay for this action to be commenced on July 1, 2011, and that the plaintiff may be found to have file d within a reasonable time if the trigger date occurred within the statutory wi n dow. 2 The plaintiff has thus establish ed "an issue of fact material to a theory that avoids the defense. " Manley , 992 N.E.2d at 674; Herron , 897
N.E.2d at 448 ; Overton , 896 N .E.2d at 502 (all three cases quoting Boggs , 730 N.E.2d at 695)

. T he defendant is not entitled to summary judgment on his defense asserting the medical malpra ctice statute of limitations.

We reverse the judgment of the trial court granting the defendant 's motion for su m mary judgment.

Rucker, David, Massa, and Rush, JJ., concur.

2 But i f Larry's suspicions were aroused outside the statutory window, after February 27, 2011, then the discovery or trigger date was more than two years after the alleged malpractice

. If that is true, the n the action was commenced timely as a matter of law because it was within two years of such disco very date

. S ee Booth , 839 N.E.2d at 1172 (“If the discovery date is more than two years beyond the date the malpractice occurred, the claimant has two years after discovery within which to in i tiate a malpractice action.”)

.