Anonymous Physician and Anonymous Medical Group v. Richard Loucks Rogers
20 N.E.3d 192
| Ind. Ct. App. | 2014Background
- Rogers (pro se) underwent repeated cystoscopies by Physician from Aug 2006 to Jan 7, 2009; equipment was disinfected with Cidex OPA.
- Rogers had allergic reactions after cystoscopies on Mar 10, 2008; July 14, 2008; and Jan 7, 2009.
- Allergist confirmed Cidex OPA allergy and notified Rogers and Physician by letter on Mar 6, 2009; Physician stopped using Cidex OPA on Rogers thereafter.
- Rogers filed a proposed medical-malpractice complaint on Mar 4, 2011 (outside two-year occurrence-based limitations measured from Jan 7, 2009).
- Trial court initially granted summary judgment to Physician, then granted Rogers’ motion to correct error and denied summary judgment; Court of Appeals reviews whether summary judgment denial was erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the continuing-wrong doctrine tolled the occurrence-based 2-year malpractice statute so the claim was timely | Rogers: Physician's repeated use of Cidex OPA and failure to investigate/referral produced a continuous course of wrongful conduct ending when Allergist diagnosed allergy on Mar 6, 2009 | Physician: Last injury-producing act was the Jan 7, 2009 cystoscopy; statute runs from that occurrence and Rogers filed after two years | Court: Doctrine does not apply — negligent acts were discrete injury-producing events; statute runs from Jan 7, 2009 |
| Whether discovery-toll exception (not reasonably possible to file within remaining time) saves Rogers’ claim | Rogers: At minimum genuine issue of fact exists about application of doctrines | Physician: Rogers discovered malpractice Mar 6, 2009 and had ~22 months to file; filing was reasonably possible | Court: No allegation of disability or impediment; 22 months = reasonably possible; exception does not save claim |
| Whether factual disputes about earlier discovery or referrals are material to limitations analysis | Rogers: Facts about who referred to Allergist and when Physician should have known create material disputes | Physician: Those disputes don't change that last occurrence date was Jan 7, 2009 | Court: Such disputes are immaterial to when statute began to run and do not preclude summary judgment |
| Whether trial court abused discretion in granting Rogers’ motion to correct error (thereby denying summary judgment) | Rogers: Motion to correct error raised genuine issues to avoid summary judgment | Physician: Trial court wrongly revived time-barred claim | Held: Trial court abused discretion; summary judgment for Physician appropriate |
Key Cases Cited
- David v. Kleckner, 9 N.E.3d 147 (Ind. 2014) (explains discovery/trigger rules and the “not reasonably possible” exception for medical-malpractice statute)
- Garneau v. Bush, 838 N.E.2d 1134 (Ind. Ct. App. 2005) (continuing-wrong may apply where a physician's ongoing course of treatment combines to produce injury)
- Gradus-Pizlo v. Acton, 964 N.E.2d 865 (Ind. Ct. App. 2012) (refused continuing-wrong tolling where malpractice was a single discrete act — prescription/initial act)
- Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692 (Ind. 2000) (doctrine of continuing wrong requires continuous injury-producing conduct and will not apply to isolated negligent acts)