Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 1 of 35

ATTORNEYS FOR THERESA 

BIEDRON, SHERRI SITKO, AND 

SUSAN ORR

David J. Cutshaw

Kelley J. Johnson

Gabriel A. Hawkins

Cohen & Malad, LLP

Indianapolis, Indiana

ATTORNEYS FOR ANONYMOUS 

HOSPITAL

Brian J. Paul

Andrew L. Campbell

Melissa M. Orizondo

Faegre Baker Daniels LLP

Indianapolis, Indiana

ATTORNEYS FOR ANONYMOUS 

PHYSICIANS AND ANONYMOUS 

MEDICAL PRACTICE

David C. Jensen

Robert J. Feldt

Alyssa Stamatakos

James L. Hough

Eichhorn & Eichhorn, LLP

Hammond, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Theresa Biedron, as the Personal 

Representative of the Estate of 

Louis Biedron, Deceased,

Appellant-Respondent,

and

G. Anthony Bertig, Chairman of 

the Medical Review Panel, and 

July 18, 2018

Court of Appeals Case No.

45A03-1708-CT-2012

Appeal from the Lake Superior 

Court

The Honorable William E. Davis, 

Judge

Trial Court Cause No.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 2 of 35

Stephen Robertson, as the 

Commissioner of the Indiana 

Department of Insurance,

Third-Party Respondents,

v.

Anonymous Physician 1, 

Anonymous Physician 2, 

Anonymous Medical Practice,

and Anonymous Hospital,

Appellees-Petitioners

45D05-1701-CT-10

Anonymous Hospital, 

Anonymous Physician 1, 

Anonymous Physician 2, and 

Anonymous Medical Practice,

Appellants-Petitioners,

v.

Sherri Sitko, as Personal 

Representative of the Estate of 

Dorothy Sullivan, Deceased,

Appellee-Respondent,

and

G. Anthony Bertig, Chairman of 

the Medical Review Panel, and 

Stephen Robertson, as the 

Commissioner of the Indiana 

Department of Insurance,

Third-Party Respondents

Interlocutory Appeal from the 

Lake Superior Court

The Honorable Calvin D. 

Hawkins, Judge

Trial Court Cause No.

45D02-1611-CT-105
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 3 of 35

Anonymous Hospital, 

Anonymous Physician, and 

Anonymous Medical Practice,

Appellants-Petitioners,

v.

Susan Orr, as Personal 

Representative of the Estate of 

Patricia Poteet, Deceased,

Appellee-Respondent,

and

G. Anthony Bertig, Chairman of 

the Medical Review Panel, and 

Stephen Robertson, as the 

Commissioner of the Indiana 

Department of Insurance,

Third-Party Respondents

Interlocutory Appeal from the 

Lake Superior Court

The Honorable Bruce D. Parent, 

Judge

Trial Court Cause No.

45D04-1609-CT-180

Crone, Judge.

Case Summary

[1] Louis Biedron, Dorothy Sullivan, and Patricia Poteet received treatment from 

one or two physicians employed by Anonymous Medical Practice (“AMP”).1 

One of the physicians implanted cardiac pacemakers in all three patients at 

 

1 Anonymous Physician 1 in the Biedron lawsuit caption is Anonymous Physician 2 in the Sullivan/Sitko 

lawsuit caption and Anonymous Physician in the Poteet/Orr lawsuit caption. Anonymous Physician 2 in 

the Biedron lawsuit caption is Anonymous Physician 1 in the Sullivan/Sitko lawsuit caption. For the sake of 

clarity, if not consistency, we use abbreviations for the physicians that are appropriate to each lawsuit.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 4 of 35

Anonymous Hospital (“AH”). Biedron died almost a year and a half after his 

surgery; Sullivan died during her surgery; and Poteet died almost a year and 

three months after her surgery.

[2] Over nine years after Biedron’s death, his widow, Theresa Biedron, as the 

personal representative of his estate, filed a proposed complaint against 

Anonymous Physician 1 (“AP1”), Anonymous Physician 2 (“AP2”), AMP, 

and AH (collectively “the Biedron Defendants”), asserting claims for medical 

malpractice and wrongful death. The Biedron Defendants moved for summary 

judgment on the basis that the complaint was filed outside the two-year

statutory limitation period for those claims. In response, Theresa argued that 

the period should be tolled by the doctrine of fraudulent concealment, and she 

submitted a supporting affidavit from a physician. The Biedron Defendants 

moved to strike the affidavit as not being based on personal knowledge, among 

other things. The trial court issued a final appealable order granting the 

Biedron Defendants’ motion to strike and motion for summary judgment.

[3] Over seven years after Sullivan’s death, her daughter, Sherri Sitko, as the 

personal representative of her estate, filed a proposed complaint against 

Anonymous Physician 1 (“AP1”), Anonymous Physician 2 (“AP2”), AMP, 

and AH (collectively “the Sitko Defendants”), asserting claims for medical 

malpractice and wrongful death. The Sitko Defendants moved for summary 

judgment on the basis that the complaint was untimely filed. In response, Sitko 

argued that the limitation period should be tolled by the doctrine of fraudulent 

concealment, and she submitted an affidavit from the same physician used by 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 5 of 35

Theresa. The Sitko Defendants moved to strike the affidavit for largely the 

same reasons as those asserted by the Biedron Defendants. The trial court 

issued an order denying the Sitko Defendants’ motion to strike and motion for 

summary judgment and certified its order for interlocutory appeal.

[4] Over seven years after Poteet’s death, her daughter, Susan Orr, as personal 

representative of her estate, filed a proposed complaint against Anonymous 

Physician (“AP”), AMP, and AH (collectively “the Orr Defendants”), asserting 

claims for medical malpractice and wrongful death. The Orr Defendants 

moved for summary judgment on the basis that the complaint was untimely 

filed. In response, Orr argued that the limitation period should be tolled by the 

doctrine of fraudulent concealment and submitted an affidavit from the same 

physician used by Theresa and Sitko. Orr also argued that the medical 

malpractice statute of limitations was unconstitutional as applied. The Orr 

Defendants filed a reply and a motion to strike the affidavit. Orr filed a motion 

to strike the Orr Defendants’ reply, claiming that it raised issues not raised in 

their summary judgment motion. The trial court issued an order denying the 

Orr Defendants’ motion to strike and motion for summary judgment and 

granting Orr’s motion to strike and certified its order for interlocutory appeal.

[5] This Court ultimately consolidated all three appeals. In the first appeal, 

Theresa argues that the trial court erred in granting the Biedron Defendants’ 

motion for summary judgment on her wrongful death claims. In the second 

appeal, the Sitko Defendants argue that the trial court erred in denying their 

motion to strike and motion for summary judgment. And in the third appeal, 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 6 of 35

the Orr Defendants argue that the trial court erred in granting Orr’s motion to 

strike and in denying their motion to strike and motion for summary judgment. 

We rule in favor of the defendants in all respects and therefore affirm in part 

and reverse in part.

Facts and Procedural History (Biedron)2

[6] Biedron was born in 1931. In February 2004, he was diagnosed with congestive 

heart failure and was evaluated by AP1. According to AP1’s treatment notes, 

“The need to insert a biventricular pacemaker [was] discussed. The risks, 

options and benefits of the procedure [were] thoroughly outlined, and questions 

were answered. The patient was agreeable to this, and therefore, directly 

admitted to [AH] on February 19, 2004.” Biedron Appellant’s App. Vol. 2 at 

174. AP1 implanted a cardiac pacemaker (“CRT-P”), and Biedron was 

released from AH. In February 2005, after complaining of shortness of breath 

and swelling in his lower extremities, Biedron was treated at AH by AP2. On 

July 31, 2005, Biedron was found unresponsive and taken to AH, where 

cardiopulmonary resuscitation was attempted, but he died from what was 

diagnosed as cardiopulmonary arrest. His death certificate lists the causes of 

death as congestive heart failure and cirrhosis of the liver.

 

2 We heard oral argument on June 1, 2018, at the French Lick Resort as part of the Indiana State Bar 

Association’s Solo & Small Firm Conference. We thank the ISBA for facilitating the argument, and we 

thank counsel for their capable advocacy.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 7 of 35

[7] In October 2014, Biedron’s widow Theresa, as personal representative of his 

estate, filed a proposed complaint for medical malpractice against the Biedron 

Defendants with the Indiana Department of Insurance (“IDOI”).

3

 The

proposed complaint asserted malpractice claims based on AP1’s implantation of 

a CRT-P instead of a cardiac pacemaker with a defibrillator (“CRT-D”) and 

performance of unnecessary procedures such as stress tests and cardiac 

angiograms, as well as on various acts or omissions of the other Biedron 

Defendants, that allegedly resulted in Biedron’s wrongful death. More 

specifically, the proposed complaint asserted a claim of malpractice against 

AP2 (apparently based on his knowledge that Biedron should have received a 

CRT-D), a claim against AMP based on the acts and omissions of AP1 and 

AP2 and other employees, and a claim against AH based on its negligent 

granting of credentials and privileges to AP1 and AP2.

[8] The Biedron Defendants filed a petition for preliminary determination4 and a 

motion for summary judgment, asserting that both the medical malpractice and 

the wrongful death claims were untimely filed. See Ind. Code §§ 34-18-7-1 

(medical malpractice tort claim may not be brought unless filed within two 

years after date of alleged malpractice) and 34-23-1-1 (wrongful death claim 

shall be commenced by personal representative of decedent within two years of 

 

3 G. Anthony Bertig, the medical review panel’s chairman, and Stephen Robinson, IDOI’s commissioner, 

were joined as third-party respondents in this case and the two other cases on appeal.

4

Indiana Code Section 34-18-11-1 provides for the preliminary determination of an issue of law or fact that is 

not reserved for written opinion by the medical review panel under Indiana Code Section 34-18-10-22.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 8 of 35

date of death); see also Ellenwine v. Fairley, 846 N.E.2d 657, 664-65 (Ind. 2006) 

(for adult victim of medical malpractice who dies within two years of 

occurrence of malpractice, (1) if death was caused by malpractice, malpractice 

claim terminates at patient’s death, and wrongful death claim must be filed 

within two years of occurrence of malpractice; (2) if death was caused by 

something other than malpractice, malpractice claim must be filed within two 

years of occurrence of malpractice, and any wrongful death claim must be filed 

within two years of date of death).

[9] In response, Theresa argued that the statutory limitation period should be tolled 

by the doctrine of fraudulent concealment, and she designated the affidavit of 

Dr. Nadim Nasir, Jr., which reads in pertinent part as follows:5

2. I have reviewed the medical records relative to AP1’s 

treatment of the patient, Louis Biedron.

3. AP1 fell below the applicable standard of care for the 

following reasons:

a) Implanting a CRT pacemaker in the patient when the patient, 

in fact, needed a CRT Defibrillator – a device that would have 

saved the patient’s life. At the time the CRT pacemaker was 

implanted, the patient had been diagnosed with Congestive Heart 

Failure and had an Ejection Fraction of less than 35% and had a 

prolonged QRS interval of > 120 msec. This patient met the 

criteria for implantation of a CRT-defibrillator; however, AP1

 

5

Paragraph 1 of the affidavit describes Dr. Nasir’s education, training, and experience, which are not at 

issue. We have replaced references to the Biedron Defendants’ names where necessary, and we have done 

likewise with the defendants’ names in the other affidavits excerpted below.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 9 of 35

did not have defibrillator privileges; hence AP1 implanted a 

suboptimal device. By 2004, it was standard of care to place 

CRT[-]ICD and to limit implantation of CRT Pacemakers to 

patients who did not desire the additional life-saving benefits of 

the Implantable Cardioverter Defibrillator part of the CRT-ICD. 

AP1 failed to disclose this reasonable and more appropriate 

alternatives [sic] to the CRT[-]PPM, this disclosure would be 

mandatory for obtaining proper consent.

b) Failing to disclose alternatives violated the standard of care for 

obtaining proper consent wherein risks, benefits and alternatives

of a procedure are discussed. This breach of duty was predicated 

on AP1’s desire to recommend a procedure which he could 

perform for financial gain, rather than refer the patient to an 

Electrophysiologist for an expert evaluation of the patient’s 

condition and CRT-ICD implantation. At that time, AP1 did 

not have privileges for ICD implantation at AH. The failure of

AP1 to either properly inform Mr. Biedron on appropriate 

options or to refer him to the appropriate expert ultimately cost 

Louis Biedron his life.

4. AP2 fell below the standard of care when he continued with 

this facade in February of 2005 knowing that the pacemaker was 

inadequate therapy for this patient who instead needed a 

defibrillator, the prevailing standard of care nationally at that

time. AP2 knowingly supported the negligent care and plan of 

action authored by AP1 rather than referring Mr. Biedron to a 

board certified Cardiac Electrophysiologist. If he did not know 

that ICD was the standard of care for Mr. Biedron, then he 

breached the standard of care due to his ignorance of this 

standard.

5. Having consciously hidden the alternative of a CRT[-]ICD, 

AP1 violated his duty to Mr. Biedron by withholding this option. 

Absent a full disclosure of the options available to him, neither

Mr. Biedron nor any lay person could know that a pacemaker 

was not the appropriate device for his condition. Neither Mr. 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 10 of 35

Biedron nor any lay person could know that he met the criteria 

for the implantation of a defibrillator. Mr. Biedron would have 

no idea or consideration that his doctor intentionally withheld 

vital life-saving options of therapy, and that this lie of omission 

was driven by financial motivations and not Mr. Biedron’s best 

interests nor that his doctor did not have the credentials for a 

defibrillator implantation. A lay person would not know that he 

needed the referral to a Cardiac Electrophysiologist for expert 

evaluation in order to implant the appropriate life-saving device.

Biedron Appellant’s App. Vol. 2 at 142-44.

[10] The Biedron Defendants filed a motion to strike Dr. Nasir’s affidavit that reads 

in relevant part as follows:

1. The affidavit of Dr. Nasir is not admissible evidence as to the 

only issue present in the current Petition for Preliminary 

Determination, namely, the application of the statute of 

limitations to [Theresa’s] claim.

2. In Dr. Nasir’s affidavit an attempt is made to inject the issue 

of whether [AP1 and AP2] complied with the standard of care. 

This issue has no bearing on whether the proposed complaint 

was timely filed. Further, the affidavit purports to summarize 

conversations [AP1 and AP2] had with Mr. Biedron, even 

though Dr. Nasir was not present, at any time, during Mr. 

Biedron’s treatment. Therefore, Dr. Nasir has no personal 

knowledge regarding the interaction between Mr. Biedron and 

either [AP1 or AP2]. For these reasons, Dr. Nasir’s affidavit 

must be stricken.

....

7. Further, Dr. Nasir’s affidavit violates [Indiana Evidence Rule]
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 11 of 35

704(b) because Dr. Nasir testified to statements regarding the 

state of mind of [AP1 and AP2 and Biedron], and regarding the 

truth or falsity of allegations.... In paragraph 5, Dr. Nasir 

testified about what “[a] lay person would not know.” But in this 

case, it is the knowledge of Mr. Biedron at issue, not an 

unnamed, average “lay person” that is relevant. Dr. Nasir did 

not – and cannot – offer opinions as to what Mr. Biedron knew 

or did not know. Rather his assertion about what “lay people” 

would know, or not know, is similarly speculative, without 

proper foundation, and inadmissible.

8. [Theresa] also uses Dr. Nasir’s affidavit to incorrectly equate a 

violation of the standard of care with fraud. These two concepts 

are unrelated. There is no case law that permits this Court to 

find fraudulent concealment based upon expert testimony 

regarding the standard of care.

Id. at 220-24.

[11] In August 2017, after a hearing on all pending motions, the trial court issued a 

final appealable order that reads in pertinent part as follows:

Upon review of the supporting documents, relevant case and 

statutory law, the Court now grants the petitions [for preliminary 

determination] and dismisses the claim of the 

Respondent/Plaintiff Theresa Biedron as personal representative 

of the Estate of Louis Biedron, deceased.

The pertinent parts of the affidavit of Dr. Nasir relating to the 

issues on the summary judgment are inadmissable [sic] 

comments on the Petitioner/Defendants Doctors’ truthfulness 

and not on facts that would indicate concealment or fraud. The 

affidavit concerning these issues is ordered stricken.

The Summary Judgment as to the complaint before the 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 12 of 35

malpractice board is beyond the statute of limitations and should 

be dismissed. The claim for wrongful death likewise is beyond 

the statute of limitations and should also be dismissed.

Biedron Appealed Order at 1-2.

[12] Theresa now appeals the trial court’s summary judgment ruling on her 

wrongful death claims and focuses her arguments solely on AP1’s alleged 

negligence, thereby implicitly conceding that her claims against the remaining 

defendants are purely derivative. She does not challenge the trial court’s ruling 

on the Biedron Defendants’ motion to strike Dr. Nasir’s affidavit.

Discussion and Decision (Biedron)

Section 1 – The trial court did not err in granting the Biedron 

Defendants’ summary judgment motion.

[13] The sole pertinent issue in this case is whether the trial court erred in granting 

the Biedron Defendants’ summary judgment motion on Theresa’s wrongful 

death claims. We review a summary judgment ruling de novo. Broadbent v. 

Fifth Third Bank, 59 N.E.3d 305, 310 (Ind. Ct. App. 2016), trans. denied. “A 

party seeking summary judgment bears the burden to make a prima facie 

showing that there are no genuine issues of material fact and that the party is 

entitled to judgment as a matter of law.” Id. “Once the moving party satisfies 

this burden through evidence designated to the trial court, the non-moving 

party may not rest on its pleadings, but must designate specific facts 

demonstrating the existence of a genuine issue for trial.” Id. at 311. Mere 

speculation is insufficient to create a genuine issue of material fact to defeat 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 13 of 35

summary judgment. Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct. App. 

2008), trans. denied (2009).

[14] “Our review of a summary judgment motion is limited to those materials 

designated to the trial court.” City of Bloomington v. Underwood, 995 N.E.2d 640, 

644 (Ind. Ct. App. 2013), trans. denied (2014). “[W]e construe the evidence in a 

light most favorable to the non-moving party and resolve all doubts as to the 

existence of a genuine factual issue against the moving party.” Broadbent, 59 

N.E.3d at 310. A trial court’s findings and conclusions on summary judgment 

are helpful in clarifying its rationale, but they are not binding on this Court. 

Whitley Cty. Teachers Ass’n v. Bauer, 718 N.E.2d 1181, 1186 (Ind. Ct. App. 1999), 

trans. denied (2000). We are not constrained to the claims and arguments 

presented to the trial court, and we may affirm a grant of summary judgment on 

any theory supported by the designated evidence. Manley v. Sherer, 992 N.E.2d 

670, 673 (Ind. 2013). The party that lost in the trial court has the burden of 

persuading us that the trial court erred. Underwood, 995 N.E.2d at 644.

[15] “The statute of limitations defense is particularly suitable as a basis for 

summary judgment.” Myers v. Maxson, 51 N.E.3d 1267, 1276 (Ind. Ct. App. 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 14 of 35

2016), trans. denied.

6

 A plaintiff need not anticipate a statute of limitations 

defense and plead matters in avoidance in the complaint. Bellwether Props., LLC 

v. Duke Energy Ind., Inc., 87 N.E.3d 462, 466 (Ind. 2017). But when the party 

moving for summary judgment “asserts the statute of limitations as an 

affirmative defense and establishes that the action was commenced beyond the 

statutory period, the burden shifts to the nonmovant to establish an issue of fact 

material to a theory that avoids the defense.” Myers, 51 N.E.3d at 1276.

[16] The Biedron Defendants established that Theresa’s wrongful death action was 

commenced well beyond the two-year statutory period that ended, at the latest, 

on July 31, 2007, two years after Biedron’s death. Theresa asserts that the 

period should be tolled by the doctrine of fraudulent concealment, and she 

designated Dr. Nasir’s affidavit to establish an issue of fact material to that 

theory.

[17] Under the doctrine of fraudulent concealment, “a person is estopped from 

asserting the statute of limitations as a defense if that person, by deception or 

violation of a duty, has concealed material facts from the plaintiff and thereby 

 

6

Strictly speaking, Indiana Code Section 34-23-1-1 is a nonclaim statute, rather than a statute of limitation. 

Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1264-65 (Ind. 2014). A nonclaim statute creates a right 

of action if commenced within the statutory period, whereas a statute of limitation creates a defense to an 

action brought after the expiration of the statutory period. In re Paternity of M.G.S., 756 N.E.2d 990, 997 (Ind. 

Ct. App. 2001), trans. denied (2002). Because the limitation period of either may be tolled by fraudulent 

concealment, Alldredge, 9 N.E.3d at 1264-65, we use the terms interchangeably here. In Alldredge, our 

supreme court held that the fraudulent concealment statute (Indiana Code Section 34-11-5-1) may apply to 

toll the limitation period for a wrongful death action. Id. All three plaintiffs, who did not invoke the statute 

below, argue that the common law doctrine of fraudulent concealment may also toll that limitation period. 

The defendants do not disagree.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 15 of 35

prevented discovery of a wrong.” Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 

692, 698 (Ind. 2000). “There are two types of fraudulent concealment, active 

and passive.” GYN-OB Consultants, LLC v. Schopp, 780 N.E.2d 1206, 1210 (Ind. 

Ct. App. 2003), trans. denied. “Passive or constructive concealment may be 

merely negligent and arises when the physician does not disclose to the patient 

certain material information.” Id. “‘The physician’s failure to disclose that 

which he knows, or in the exercise of reasonable care should have known, 

constitutes constructive fraud.’” Id. (quoting, inter alia, Cyrus v. Nero, 546 

N.E.2d 328, 330 (Ind. Ct. App. 1989)). Where the concealment is passive, the 

statute of limitations begins to run when the patient-physician relationship ends,

or until the discovery of the malpractice, whichever is earlier. Schopp, 780 

N.E.2d at 1210.

[18] “Active concealment involves affirmative acts of concealment intended to 

mislead or hinder the plaintiff from obtaining information concerning the 

malpractice.” Id. “[T]here must be some affirmative act which amounts to 

more than passive silence.” French v. Hickman Moving & Storage, 400 N.E.2d 

1384, 1389 (Ind. Ct. App. 1980). The plaintiff must establish that the 

defendant’s concealment of material information somehow prevented her from 

inquiring into or investigating the plaintiff’s (or decedent’s) condition, thus 

preventing her from discovering a potential cause of action. Garneau v. Bush, 

838 N.E.2d 1134, 1143 (Ind. Ct. App. 2005), trans. denied (2006). When active 

concealment is involved, the statute of limitations does not expire until a 
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reasonable time after the plaintiff discovers or with reasonable diligence could 

have discovered the existence of the malpractice. Schopp, 780 N.E.2d at 1210.

[19] Theresa concedes that a constructive concealment claim would be fruitless

because Biedron’s relationship with AP1 ended at his death in 2005. She

characterizes AP1’s advice to Biedron as active concealment, claiming that

[AP1] did not simply engage in passive silence by failing to 

inform [Biedron] that he needed a CRT-D. Rather, [AP1] 

affirmatively misrepresented the “need” for a CRT-P and, in so 

doing, failed to alert [Biedron] that a CRT-P is only intended for 

patients who do not desire the life-saving benefits of a CRT-D. 

Having no idea that he received the wrong device as a result of 

[AP1’s] indication that he was receiving the “needed” device, 

[AP1] not only led [Biedron] to his death but cloaked the 

malpractice surrounding the impropriety of his failure to refer 

[Biedron] to an electrophysiologist with privileges to implant a 

CRT-D.

Biedron Appellant’s Br. at 15 (citing Biedron Appellant’s App. Vol. 2 at 142).

[20] A critical flaw in Theresa’s argument is that Dr. Nasir had no personal 

knowledge of what AP1 actually told Biedron about the CRT-P. Indiana Trial 

Rule 56(E) provides that affidavits designated in support of or opposition to 

summary judgment “shall be made on personal knowledge, shall set forth such 

facts as would be admissible in evidence, and shall show affirmatively that the 

affiant is competent to testify to the matters stated therein.” “The requirements 

of Trial Rule 56(E) are mandatory and a court considering a motion for 

summary judgment should disregard inadmissible information contained in 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 17 of 35

supporting or opposing affidavits.” Morris v. Crain, 71 N.E.3d 871, 877 (Ind. Ct. 

App. 2017). Accordingly, the trial court should have disregarded Dr. Nasir’s 

statements regarding matters of which he had no personal knowledge, including 

AP1’s intent and state of mind, what Biedron knew, and what AP1 actually 

told Biedron about the CRT-P.7 See Weaver v. State, 643 N.E.2d 342, 345 (Ind. 

1994) (noting that witnesses may not testify to opinions concerning intent under 

Ind. Evidence Rule 704(b), which is consistent with prior common law rule 

“that a witness may not give an opinion as to the state of mind or the thought 

processes of another person.”); Houser v. Kaufman, 972 N.E.2d 927, 936 (Ind. 

Ct. App. 2012) (declining to assume for purposes of summary judgment that 

content of physician’s notes was repeated verbatim to patient), trans. denied.

8

[21] Theresa argues that AP1’s state of mind may be established by inference, 

claiming that his lack of hospital privileges to implant a CRT-D suggests that he 

“had a financial motive to perform the improper implant of a CRT-P rather 

than refer [Biedron] to a physician with CRT-D privileges.” Biedron 

Appellant’s Br. at 17. But absent any designated evidence regarding what AP1 

actually told Biedron about the CRT-P, Theresa can only speculate that AP1 

 

7 The physician and medical practice defendants in all three cases note that the patients signed consent forms 

prior to their implant surgeries, and that if a consent is properly signed and witnessed and properly explained 

to the patient before a procedure is undertaken, “a rebuttable presumption is created that the consent is an 

informed consent.” Ind. Code § 34-18-12-2. The plaintiffs point out that “causes of action predicated upon a 

lack of informed consent are distinct from actions arising from an unnecessary surgery.” Sitko/Orr 

Appellees’ Br. at 33-34.

8

In her reply brief, Theresa asserts that vestiges of Dr. Nasir’s affidavit survived the Biedron Defendants’ 

motion to strike. Because she did not challenge the trial court’s ruling in her initial brief, she has waived any 

argument in this regard.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 18 of 35

affirmatively misled Biedron about his need for the device. “[M]ere speculation 

cannot create questions of fact.” Beatty, 896 N.E.2d at 20.

[22] And even assuming that AP1 affirmatively misled Biedron about his need for a 

CRT-P, Theresa has failed to establish that this prevented her from investigating 

Biedron’s condition. As AH points out, Theresa could have requested 

Biedron’s medical records after his death in 2005, and they would have revealed 

the same information that she now relies on to assert that AP1 committed 

malpractice by implanting a CRT-P instead of a CRT-D. The only “concealed” 

evidence that came to light after Biedron’s death was AP1’s alleged financial 

motive to commit malpractice, which is irrelevant to our analysis because the 

concealment did not prevent Theresa from investigating Biedron’s condition. 

Because Theresa has failed to establish an issue of fact material to her 

fraudulent concealment theory, we affirm the trial court’s entry of summary 

judgment for the Biedron Defendants.

Facts and Procedural History (Sitko)

[23] Sullivan was born in 1932. In 2008, she received unspecified care and 

treatment from AP1. On February 13, 2008, AP2 inserted a cardiac stent in 

one of Sullivan’s arteries. On February 19, 2008, AP2 recommended that 

Sullivan receive a CRT-D. The next day, Sullivan died during the CRT-D 

implantation surgery, which AP2 performed at AH. Her death certificate lists 

her cause of death as congestive heart failure due to or as a cause of severe 

coronary artery disease. Sitko/Orr Appellants’ App. Vol. 2 at 102.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 19 of 35

[24] Over seven years later, on May 15, 2015, Sitko, as the personal representative of 

Sullivan’s estate, filed a proposed complaint for medical malpractice against the 

Sitko Defendants with the IDOI. The proposed complaint asserted general 

claims of medical malpractice against AP1 and AP2, a claim against AMP 

based on the negligence of AP1 and AP2, and a claim against AH for the 

negligent credentialing, privileging, and policing of AP1 and AP2. It also 

asserted claims for wrongful death or, in the alternative, claims for personal 

injury that allegedly survived Sullivan’s death pursuant to Indiana Code Section 

34-9-3-1.

9

[25] In 2016, the Sitko Defendants filed a petition for preliminary determination and 

a motion for summary judgment, asserting that Sitko’s claims were untimely 

filed. In response, Sitko argued that the statutory limitation period should be 

tolled by the doctrine of fraudulent concealment, and she designated an

affidavit from Dr. Nasir that reads in pertinent part as follows:

2. I have reviewed the medical records relative to AP2’s 

treatment of the patient, Dorothy Sullivan.

3. AP2 fell below the applicable standard of care for the 

following reasons:

a) AP2 recommended and implanted a defibrillator just several 

 

9

Indiana Code Section 34-9-3-1(a) provides that if an individual who is entitled to a cause of action dies

(with certain exceptions not relevant here), the cause of action survives and may be brought by the deceased 

party’s representative. “The action is considered a continued action and accrues to the representatives or 

successors at the time the action would have accrued to the deceased if the deceased had survived.” Ind. 

Code § 34-9-3-1(b). The limitation period for a personal injury action is two years. Ind. Code § 34-11-2-4(a).
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 20 of 35

days after performing a stent on the proximal Left Anterior 

Descending Artery (LAD). The performance of an Implantable 

Cardioverter Defibrillator (ICD) for primary prevention of

Sudden Cardiac Death within 90 days of a revascularization

procedure is outside the standard of care and exhibits either a 

willful disregard of established Medical Practice and Standards or 

it exhibits a lack of appropriate intellectual fund of knowledge, 

either of which resulted in a procedure which was inappropriate, 

not indicated and below the standard of care and which

proximately led to her death during that implantation.

b) Notwithstanding the improper recommendation and 

implantation of an ICD, AP2 further aggravated his substandard 

care by improperly recommending a Cardiac Resynchronization 

Therapy Defibrillator (CRT-D) device on 02/19/08 when the 

patient had a narrow QRS duration via EKG findings on 

02/07/08 (QRS 97 msec) and 02/10/08 (QRS 92 msec). The 

rules, recommendations, guidelines and established medical 

practice of placing a CRT-D require a QRS duration equal to or 

greater than 120 milliseconds (msec) and disallows the 

implantation of a CRT-D device absent this criteria. 

Furthermore the patient must also qualify for an ICD. Mrs. 

Sullivan as previously noted did not qualify for an ICD because 

of her recent revascularization procedure on her LAD and her 

Myocardial Infarction which was much more likely than not less 

than 40 days old (see section c. below) and she certainly did not 

require a CRT[-]D (which differs from a regular ICD by 

placement of the LV lead, which in this case proximately led to 

her death from probably cardiac tamponade. (see below)

c) Moreover in his signed Indications for ICD Therapy sheet (an

administrative form provided by AH to justify device 

implantation) in the Hospital record AP2 affirmed and signed his 

name to that document that the patient had LV (left ventricular) 

dysfunction due to a prior MI (myocardial infarction), AND that 

at least forty (40) days had passed after the Ml and the patient’s 

LVEF (left ventricular ejection fraction) was less than or equal to 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 21 of 35

40%. The evidence in the medical record reveals a gross and 

negligent error in his judgment that the MI was more than 40 

days old.

Mrs. Sullivan presented with a 1 week history of symptoms and 

had EKG evidence of recent transmural myocardial infarction 

(MI). There was additional substantial objective evidence that 

her MI was recent based on the Electrocardiograms 2/07/2008 

and subsequent evolutionary changes on later EKGs and the 

Echocardiogram performed on 2/10/2008 showing normal Left 

Ventricular (LV) size (aged MI more than 40 days old due to

LAD disease generally would have Left Ventricular enlargement 

yet her LV was normal in size. Hence AP2 negligently failed to 

even reasonably establish the timing of the MI and further 

violated the standard of care when recommended the ICD within 

the 40 day window of exclusion. Further supporting a recent 

diagnosis of myocardial infarction was normal LV wall thickness. 

Remodeling of LV geometry and wall thickness after myocardial 

infarction occurs in the time frame remote from MI and results in 

thinning of the affected infarcted muscle in addition to expansion 

of the LV as stated herein.

d) Hence AP2’s recommendation for an ICD fell below the 

standard of care on not one but two necessary criteria, i) 

implantation within 90 clays of revascularization ii) implantation 

within 40 days of acute MI (AMI).

e) There is no indication that [sic] in the medical records that 

AP2 disclosed to the patient or subsequently her estate that the 

device he recommended and implanted on 02/20/08 was not 

necessary or indicated in light of the aforementioned required 

criteria for implantation of an ICD and in light of her narrow 

QRS and in light of the fact the ACC/AHA Implant Guidelines 

indicate that either an ICD or CRT (cardiac resynchronization 

therapy) device should not be implanted within ninety (90) days 

of revascularization or within 40 days of an acute MI.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 22 of 35

4. AP2 improperly represented to the patient that she needed a 

CRT-D implant when she did not meet indications for such a 

device, either an ICD or a CRT-ICD as herein stated because she 

did not qualify for multiple reasons (see above).

5. AP2 further fell below the standard of care during the 

implantation of the unnecessary ICD. Mrs. Sullivan had no 

pericardial effusion on February 10, 2008. During the

implantation of the inappropriate ICD, more specifically during 

placement of the LV lead Mrs. Sullivan becomes progressively 

bradycardic and arrests. A stat Echo was done showing an

important pericardial effusion. AP2 failed to competently 

address this life threatening complication and falls below the 

standard of care in 2 respects:

i) his inability to recognize that he much more likely than not 

caused a tear in the cardiac venous anatomy leading to the 

immediate accumulation of the effusion and the resultant cardiac 

tamponade.

ii) his inability to perform a competent pericardiocentesis to 

relieve the blood in the pericardial sac and by doing so relieve 

compressive pressure on the heart to permit adequate filling and 

pumping of blood and restore spontaneous circulation further 

show his lack of proper education and training in the 

performance and management of complications of ICD/CRT

[-]D implantation.

6. The average person laying [sic] ill in the hospital has an 

expectation that their doctor will recommend appropriate options 

for diagnosis and treatment. The average person would not

suspect that their doctor would recommend, nor the hospital 

permit inappropriate and unnecessary surgeries. A lay person 

would not know that an ICD was unnecessary for the reasons 

stated above nor that the patient’s EKG QRS duration was 

essentially normal and that the totality of these conditions did not 

qualify her for either an ICD or a CRT-D. A lay person would 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 23 of 35

not and could not know that the ACC/AHA Implant Guidelines 

nor Medicare Payment guideline did not permit implantation of 

an ICD for primary prevention in this patient or any patient until 

forty days post-MI and/or until ninety days postrevascularization (i.e., cardiac vessel stenting). Frankly most 

people expect their doctors to be competent and honest and have

the patient’s best interest at heart therefore there would be no 

expectation that either Mrs. Sullivan or her estate should have 

known that AP2 breeched [sic] the standards of care in his

negligent recommendations and that AH negligently credentialed 

AP2.

Sitko/Orr Appellants’ App. Vol. 3 at 22-28.

10

[26] The Sitko Defendants filed a motion to strike Dr. Nasir’s affidavit based on his 

lack of personal knowledge as to what AP2 told Sitko, his statements regarding 

AP2’s state of mind, his conflation of negligence and fraud, and his speculation 

regarding what a lay person would know, among other things. After a hearing, 

the trial court issued an order summarily denying the Sitko Defendants’ motion 

for summary judgment and motion to strike and certified the order for 

interlocutory appeal. Sitko concedes that her submission of Dr. Nasir’s 

affidavit opining that Sullivan’s death was caused by AP2’s allegedly 

unnecessary surgery prevents her from pursuing a survival action, and thus she 

is pursuing only her wrongful death claims. 

 

10 The affidavit contains additional assertions regarding AH that are irrelevant to this appeal.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 24 of 35

Discussion and Decision (Sitko)

Section 2 – The trial court abused its discretion in denying the 

Sitko Defendants’ motion to strike Dr. Nasir’s affidavit.

[27] We first address the Sitko Defendants’ argument that the trial court erred in 

denying their motion to strike Dr. Nasir’s affidavit. A trial court has broad 

discretion in ruling on the admissibility of evidence, which extends to rulings on 

motions to strike affidavits on the grounds that they do not comply with the 

summary judgment rules. Morris, 71 N.E.3d at 877. A trial court abuses its 

discretion when its decision is clearly against the logic and effect of the facts 

and circumstances before it. Id.

[28] The Sitko Defendants argue, and we agree, that the affidavit contains 

inadmissible statements regarding matters outside Dr. Nasir’s personal 

knowledge, such as the conversations between AP2 and Sullivan, as well as

inadmissible statements regarding their intent, state of mind, and knowledge. 

Ind. Trial Rule 56(E); Ind. Evidence Rule 704(b). Therefore, we conclude that 

the trial court abused its discretion in denying the Sitko Defendants’ motion to 

strike those portions of Dr. Nasir’s affidavit.

[29] The Sitko Defendants also take issue with Dr. Nasir’s assertions of negligence, 

claiming that this issue is reserved for the medical review panel and irrelevant to 

fraudulent concealment. Sitko argues that to establish fraudulent concealment, 

she must demonstrate that AP2’s “representations were inaccurate, and expert 

medical testimony is necessary to establish such misrepresentations.” 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 25 of 35

Sitko/Orr Appellees’ Br. at 51. But Dr. Nasir’s assertions of negligence based 

on AP2’s alleged errors in judgment or lack of skill/training/knowledge are not 

affirmative acts of concealment that prevented Sitko from investigating 

Sullivan’s condition. Accordingly, we conclude that the trial court abused its 

discretion in failing to strike those portions of the affidavit as well.

Section 3 – The trial court erred in denying summary judgment

to AP1.

[30] The Sitko Defendants also assert that Sitko designated no evidence to support a 

tolling claim as to AP1, and therefore API is entitled to summary judgment. 

Sitko concedes her failure to designate such evidence but contends that the 

Sitko Defendants failed to alert her to their bases for seeking summary 

judgment as to AP1 in their initial summary judgment memorandum; she cites 

to the Orr Defendants’ memorandum to support this contention, however. See

Sitko/Orr Appellees’ Br. at 53 (citing Sitko/Orr Appellants’ App. Vol. 3 at 109-

29). The Sitko Defendants’ memorandum notes that more than seven years 

had passed from the date of their last possible act of alleged malpractice and 

argues that there was no legal basis for tolling the statutory limitation period. 

Sitko/Orr Appellants’ App. Vol. 2 at 46-47. This was sufficient to alert Sitko to 

the Sitko Defendants’ bases for seeking summary judgment as to AP1, and 

Sitko designated no evidence to defeat the summary judgment motion. 

Therefore, we reverse the denial of summary judgment as to AP1.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 26 of 35

Section 4 – The trial court erred in denying summary judgment 

to the remaining Sitko Defendants.

[31] The remaining Sitko Defendants contend that they are also entitled to summary 

judgment, claiming that Sitko designated no admissible evidence that AP2’s 

representation to Sullivan about her need for a CRT-D was an affirmative 

misrepresentation, as opposed to an act of negligence. We agree. Dr. Nasir 

had no personal knowledge about what AP2 actually told Sullivan, and he had 

no personal knowledge regarding AP2’s intent or state of mind, i.e., whether 

AP2 intended to mislead Sullivan about her need for a CRT-D or was merely 

negligent. Sitko notes that her counsel argued at the summary judgment 

hearing that Sullivan would not have “ended up on the operating table” if AP2 

had not lied to her about the necessity of the surgery. Sitko/Orr Appellees’ Br. 

at 39 (quoting Sitko/Orr Tr. Vol. 2 at 24). Counsel’s argument is pure 

speculation, and it is well settled that “the ‘unsworn commentary of an 

attorney’ is not competent evidence for a summary judgment motion and 

should not be considered.” Turner v. Bd. of Aviation Comm’rs, 743 N.E.2d 1153, 

1164 (Ind. Ct. App. 2001) (quoting Freson v. Combs, 433 N.E.2d 55, 59 (Ind. Ct. 

App. 1982)), trans. denied. Sitko cites several cases stating that fraud may be 

inferred from circumstantial evidence, but she cites no authority for the 

proposition that active fraudulent concealment may be inferred from merely 

negligent conduct. Cf. Hughes v. Glaese, 659 N.E.2d 516, 521 (Ind. 1995) (“[B]y 

distinguishing the two branches of fraudulent concealment on the basis of 

whether the physician’s concealment was negligent or purposeful, courts can 

make more appropriate and just determinations as to when defendant 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 27 of 35

physicians should be prevented from asserting the limitations defense.”). We 

do not hold that such an inference could never be drawn, only that Sitko has 

failed to designate admissible evidence to support that inference in this case.

[32] And even assuming that AP2 affirmatively misled Sullivan about her need for a 

CRT-D, Sitko has failed to establish that this prevented her from investigating 

Sullivan’s condition. Sitko could have requested Sullivan’s medical records 

after her death in 2008, and they would have revealed the same information 

that she now relies on to assert that AP2 committed malpractice. In sum, Sitko 

has failed to establish an issue of fact material to her fraudulent concealment 

theory. She makes no separate arguments regarding AMP and AH, thereby 

implicitly conceding that their liability is purely derivative of AP2’s liability. 

Consequently, we reverse the trial court’s denial of the Sitko Defendants’ 

summary judgment motion as to AP2, AMP, and AH.

Facts and Procedural History (Orr)

[33] Poteet was born in 1936. AP began treating Poteet in 2002 and performed 

several medical procedures, including the implantation of a carotid stent in 

October 2005, the implantation of a CRT-D in January 2006, the performance 

of a left heart catherization coronary angiogram in March 2006, and the 

performance of a transesophageal echocardiogram in September 2006. On

April 24, 2007, Poteet died. Her death certificate lists the cause of death as end 

stage renal disease.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 28 of 35

[34] Over seven years later, on October 27, 2014, Orr, as personal representative of 

Poteet’s estate, filed a proposed complaint for medical malpractice asserting 

claims against the Orr Defendants that are similar to those asserted in Sitko’s

proposed complaint. Orr asserted claims for wrongful death or, in the 

alternative, claims for personal injury that allegedly survived Poteet’s death 

pursuant to Indiana Code Section 34-9-3-1.

[35] In 2016, the Orr Defendants filed a petition for preliminary determination and a 

motion for summary judgment, asserting that Orr’s claims were untimely filed. 

In response, Orr designated an affidavit from Dr. Nasir that reads in pertinent 

part as follows:

2. I have reviewed the Submissions of the parties and [sic] in this 

case and the medical records relative to AP’s treatment of the 

patient, Patricia Poteet.

3. AP fell below the applicable standard of care for the following 

reasons:

a) Improperly evaluating and recommending a CRT-D device on 

01/19/06 when the patient had a narrow QRS via EKG findings 

on 08/23/05 (QRS 89); 10/21/05 (QRS 98); 10/23/05 (QRS 

87); 10/24/05 (QRS 97); and 01/19/06, hours before the implant 

(QRS 83). The standard of care does not permit the implantation 

of a CRT-D device unless the QRS is equal to or greater than 120 

ms;

b) Misstating in his Operative Note that the patient’s QRS was 

130 apparently attempting to justify this unnecessary implant;

c) Subjecting the patient to unnecessary diagnostic procedures 

and misstating indications for those procedures or otherwise 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 29 of 35

repeating tests that were completed shortly before the tests.

4. AP improperly represented to the patient that she needed a 

CRT-D implant when she did not meet the indications for such a 

device, as her QRS was essentially normal.

5. A lay person would not know that this device was 

unnecessary or that AP misstated the patient’s QRS in the 

Procedure Note relative to the CRT-D implantation.

6. After reviewing documents relative to the negligent 

credentialing claim, AH concealed from the public (and from this 

patient) that AP was not qualified to evaluate, treat, implant 

CRT-D devices, or follow the patient after the implantation. AH

also concealed from the public and this patient that AP was 

improperly granted privileges for ICD’s and CRT-D’s. A CRT-D 

device was implanted in this patient.

Sitko/Orr Appellants’ App. Vol. 8 at 40-41. Orr argued that the statutory 

limitation period for her wrongful death claims should be tolled by the doctrine 

of fraudulent concealment or, in the alternative, that the statutory limitation 

period for her medical malpractice claims was unconstitutional as applied.

[36] The Orr Defendants filed a reply to Orr’s response and a motion to strike Dr. 

Nasir’s affidavit, which is substantially similar to the foregoing motions to 

strike. Orr filed a motion to strike portions of the Orr Defendants’ reply on the 

basis that “multiple new issues” were raised therein. Id. at 76. Without holding 

a hearing, the trial court issued an order denying the Orr Defendants’ motion to 

strike on the basis that Dr. Nasir’s affidavit “demonstrated that he was 

competent to testify on the matters contained therein, that the facts he swore to 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 30 of 35

were admissible, relevant, and were necessary to understand the nature of the 

malpractice alleged.” Orr Appealed Order at 2. The trial court also denied the 

Orr Defendants’ summary judgment motion on the basis that Dr. Nasir’s 

affidavit “invoked enough doubt ... to properly preserve the issue of equitable 

tolling as appropriate to the present facts and, in doing so, also precluded 

summary judgment on the issue of a statute of limitations violation.” Id. at 4. 

Finally, the trial court granted Orr’s motion to strike those portions of the Orr 

Defendants’ reply that “injected issues argued for the first time, thus preventing 

those issues from being countered within the adversary process.” Id. at 2. The 

trial court certified the order for interlocutory appeal.

Discussion and Decision (Orr)

Section 5 – The trial court abused its discretion in striking the 

Orr Defendants’ reply briefs.

[37] In Orr’s motion to strike, she asserted that the Orr Defendants improperly 

argued for the first time in their summary judgment reply brief that granting 

summary judgment for AP would require granting summary judgment for 

AMP because no independent claims of malpractice had been made against 

AMP. On appeal, the Orr Defendants contend that “[t]his is simply not true” 

because they “demonstrated in their original [summary judgment] motion and 

brief that Orr’s claim against AMP included allegations of respondeat superior for 

the treatment rendered by [AP] and that the claims against both [AP] and 

[AMP] would be time-barred.” Sitko/Orr AP1/AP2/AMP Appellants’ Br. at 

42. The record indicates that the Orr Defendants excerpted Orr’s allegations 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 31 of 35

against AP and AMP in her proposed complaint but did not make the specific 

argument later made in their reply brief. It is clear from the face of Orr’s 

complaint, however, that she did not assert a separate basis of liability for 

AMP.

[38] Orr also asserted that the Orr Defendants improperly argued for the first time in 

their reply brief that AP’s “fraud amounted to no more than passive silence.” 

Sitko/Orr Appellants’ App. Vol. 8 at 77. But this argument was a rejoinder to 

Orr’s argument in her response brief that AP “not only misrepresented the need 

for a CRT-D implant but also affirmatively misrepresented Poteet’s QRS 

duration.” Id. at 31. Contrary to Orr’s assertion in her motion to strike, the Orr 

Defendants were not required to raise the elements of fraud in their summary 

judgment motion; their only burden was to establish that Orr’s claims were 

untimely. Myers, 51 N.E.3d at 1276.11 Thus, the Orr Defendants’ argument in 

their reply brief was a proper response to Orr’s argument regarding fraudulent 

concealment. Based on the foregoing, we conclude that the trial court abused 

its discretion in striking the Orr Defendants’ reply briefs.

Section 6 – The trial court abused its discretion in denying the 

Orr Defendants’ motion to strike Dr. Nasir’s affidavit.

[39] The Orr Defendants’ arguments regarding the denial of their motion to strike 

Dr. Nasir’s affidavit are similar to (and indeed are largely lumped in with) those 

 

11 We acknowledge that Orr mentioned fraudulent concealment in her proposed complaint and that the Orr 

Defendants followed suit in their initial summary judgment brief, but neither was obligated to do so.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 32 of 35

of the Sitko Defendants. One wrinkle in this case is Dr. Nasir’s observation 

that Poteet’s QRS reading in her EKG is different from the QRS reading in 

AP’s operative notes, which Orr asserts is indicative of an intent to mislead. 

AH points out, however, that Poteet’s medical records “may establish what 

[AP] wrote down about her QRS duration,” but they do “not establish what he 

communicated to her about her QRS duration.” Sitko/Orr AH Appellant’s Br. 

at 31. Nor do they establish what AP actually told Poteet about her need for a 

CRT-D. Therefore, we conclude that the trial court abused its discretion in 

denying the Orr Defendants’ motion to strike Dr. Nasir’s statements regarding 

matters outside his personal knowledge.

Section 7 – The trial court erred in denying summary judgment

on Orr’s wrongful death claims on the issue of fraudulent 

concealment.

[40] The Orr Defendants’ arguments regarding fraudulent concealment are also 

similar to those of the Sitko Defendants. The operative facts of the two cases 

are sufficiently similar to compel a similar result. Orr’s proposed complaint 

suggests that AP had a concealed financial motive to mislead Poteet about the 

need for a CRT-D; as in the Biedron case, the concealment of AP’s motive to 

mislead is irrelevant to our analysis because it did not prevent Orr from 

investigating Poteet’s condition. Consequently, we reverse the denial of the Orr

Defendants’ summary judgment motion on the issue of fraudulent 

concealment, which disposes of Orr’s wrongful death claims.
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 33 of 35

Section 8 – The trial court erred in denying summary judgment 

on Orr’s medical malpractice claims.

[41] Finally, we must also determine if a genuine issue of material fact exists

regarding whether the two year-limitation period of Indiana Code Section 34-

18-7-1 is unconstitutional as applied to Orr’s medical malpractice claims. 

Section 34-18-7-1 “is an ‘occurrence’ statute as opposed to a ‘discovery’ 

statute.” Brinkman v. Bueter, 879 N.E.2d 549, 553 (Ind. 2008). “Because this 

statutory time limit begins to run upon the occurrence of the alleged 

malpractice, without regard to the date of actual or constructive discovery of 

injury or malpractice by a person sustaining harm, literal application of the 

statute has been found unconstitutional in certain situations.” Booth v. Wiley, 

839 N.E.2d 1168, 1170-71 (Ind. 2005). In Martin v. Richey, 711 N.E.2d 1273 

(Ind. 1999), the court held that the “statute of limitations may not 

constitutionally be applied to preclude the filing of a claim before a plaintiff 

either knows of the malpractice and resulting injury or discovers facts that, in 

the exercise of reasonable diligence, should lead to the discovery of the 

malpractice and the resulting injury.” Booth, 839 N.E.2d at 1171.

Under an occurrence-based statute, ... the critical issue is what 

reasonable diligence requires, not when the claim accrues or is 

discovered. Because the Medical Malpractice Act provides an 

occurrence-based limitations period, reasonable diligence requires more 

than inaction by a patient who, before the statute has expired, does or 

should know of both the injury or disease and the treatment that either 

caused or failed to identify or improve it, even if there is no reason to 

suspect malpractice. As a matter of law, the statute requires such a 

plaintiff to inquire into the possibility of a claim within the 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 34 of 35

remaining limitations period, and to institute a claim within that 

period or forego it.

Herron v. Anigbo, 897 N.E.2d 444, 449 (Ind. 2008) (emphasis added). “A 

plaintiff does not need to be told malpractice occurred to trigger the statute of 

limitations.” Brinkman, 879 N.E.2d at 555.

[42] The “critical date” on which a patient either knows of malpractice and the 

resulting injury or learns of facts that, in the exercise of reasonable diligence, 

should lead to the discovery thereof is known as the “trigger date.” Herron, 897 

N.E.2d at 449. “The length of time within which a claim must be filed after a 

trigger date in an occurrence-based statute also varies with the circumstances.” 

Id. “A plaintiff whose trigger date is after the original limitations period has 

expired may institute a claim for relief within two years of the trigger date.” Id. 

“But if the trigger date is within two years after the date of the alleged 

malpractice, the plaintiff must file before the statute of limitations has run if 

possible in the exercise of due diligence.” Id. “If the trigger date is within the 

two-year period but in the exercise of due diligence a claim cannot be filed 

within the limitations period, the plaintiff must initiate the action within a 

reasonable time after the trigger date.” Id.

[43] Here, the Orr Defendants assert that Poteet was aware of her cardiac disease

and AP’s treatment. They observe that Orr alleged in her amended proposed 

complaint that Poteet “suffered severe and permanent physical injuries and 

disabilities, endured great pain and suffering, mental distress and anguish and 

trauma” as a result of the Orr Defendants’ alleged malpractice. Sitko/Orr 
Court of Appeals of Indiana | Opinion 45A03-1708-CT-2012 | July 18, 2018 Page 35 of 35

Appellants’ App. Vol. 4 at 33. They also cite to Poteet’s medical records, which 

contained all the information that Dr. Nasir needed to determine that the CRTD was unnecessary, and documented her numerous health problems and 

hospital visits that occurred both before and after the CRT-D implantation. AH

sums up their argument as follows: “Poteet knew she had a heart condition. 

She knew she had received a [CRT-D] for that condition. And she knew her 

condition failed to improve. These were all facts that, in the exercise of 

reasonable diligence, should have led to the discovery of the malpractice and 

the resulting injury.” Sitko/Orr AH Appellant’s Reply Br. at 11 (citations, 

quotation marks, and alterations omitted).

[44] We agree. Even if Poteet and Orr had no reason to suspect malpractice, 

reasonable diligence required them to inquire into the possibility of a claim 

years before the proposed malpractice complaint was filed in 2014; we need not 

pinpoint the trigger date, but it was certainly no later than the date of her death 

in 2007. Consequently, we reverse the denial of the Orr Defendants’ summary 

judgment motion on Poteet’s medical malpractice claims.

[45] In sum, we rule in favor of the defendants in all respects. Accordingly, we 

affirm in part and reverse in part.

[46] Affirmed in part and reversed in part.

Vaidik, C.J., and Kirsch, J., concur.