998 N.E.2d 749
Ind. Ct. App.2013Background
- Wininger underwent March 20, 2007 toe shortening surgery by A.P. for right-foot pain.
- By July–October 2007, the toe remained deformed and Wininger continued to experience pain, prompting consideration of a second opinion.
- In October 2007 Wininger realized she should obtain a second medical opinion about her foot condition.
- April 2009 Wininger sought a second opinion from Dr. Powers, who diagnosed that the second toe was too short and recommended revision surgery.
- Wininger filed a proposed malpractice complaint on March 9, 2011, alleging substandard care by A.P. for the 2007 surgery.
- A.P. moved for summary judgment asserting the two-year statute of limitations barred the claim; the trial court denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the claim is time-barred by the statute of limitations | Wininger's discovery occurred in 2009; timely filing within two years after discovery. | Notice of potential malpractice arose in 2007; tolling not applicable, filing beyond two years. | Summary judgment for AP; statute not tolled; complaint untimely. |
Key Cases Cited
- Johnson v. Gupta, 762 N.E.2d 1280 (Ind. Ct. App. 2002) (tolling occurs upon discovery of malpractice symptoms, not need for explicit notice)
- Brinkman v. Bueter, 879 N.E.2d 549 (Ind. 2008) (discovery of malpractice triggers tolling, not mere awareness of injury)
- Gyn-OB Consultants, L.L.C. v. Schopp, 780 N.E.2d 1206 (Ind. Ct. App. 2003) (tolling not triggered by immediate post-surgery symptoms that do not signal malpractice)