Diana Zelman v. Central Indiana Orthopedics, P.C., and Francesca D. Tekula, M.D., 18A02-1705-PL-1121

In May 2010 Dr. Francesca Tekula performed lumbar surgery on Diana Zelman (removal of a synovial cyst and a one-level fusion), but while operating performed an additional second-level fusion and trimmed unusually long lamina without telling Zelman beforehand.
Postoperatively Zelman suffered a distinct, intense, chronic pain she had not had before and repeatedly asked Tekula why she was in so much pain; Tekula repeatedly told her the surgery went well and that postoperative MRI showed she was "healing beautifully."
Zelman pursued care from multiple providers (pain management, neurologist, foot specialist) and sought other surgeons; one surgeon (Mobasser) declined to operate; Dr. Coscia ultimately performed a second, extensive surgery in 2014 and found the 2010 fusion had not occurred and pedicle screws were absent.
Zelman filed a proposed malpractice complaint on January 9, 2015. Tekula and Central Indiana Orthopedics moved for summary judgment arguing Zelman discovered or should have discovered the malpractice by March 1, 2013.
The trial court granted summary judgment for defendants, finding Zelman could have discovered the alleged negligence by March 1, 2013. Zelman appealed.
The Court of Appeals reversed, holding there is a genuine issue of material fact whether Zelman exercised reasonable diligence in discovering the malpractice given Tekula’s assurances and that the malpractice was not effectively discovered until the 2014 surgery.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether summary judgment was proper because Zelman's claim was time-barred under the 2-year malpractice statute of limitations	Zelman argues the discovery rule delays the trigger date because she reasonably relied on Tekula’s assurances that healing was normal and did not discover malpractice until the 2014 surgery; thus a factual dispute exists on reasonable diligence	Tekula/CIO argue Zelman had facts and symptoms (ongoing, unusual post-op pain and multiple consultations) that a reasonably diligent person would have investigated well before March 2013, so suit was untimely	Reversed: court held a genuine factual dispute exists about when Zelman, exercising reasonable diligence, would have discovered the malpractice, so summary judgment was erroneous

Hughley v. State, 15 N.E.3d 1000 (Ind. 2014) (summary judgment review is de novo; apply trial-court standard)
Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970 (Ind. 2001) (review limited to materials designated to the trial court)
Catt v. Bd. of Comm’rs of Knox Cnty., 779 N.E.2d 1 (Ind. 2002) (appellate court may affirm on any ground supported by T.R. 56 materials)
Manley v. Sherer, 992 N.E.2d 670 (Ind. 2013) (party moving for summary judgment bears initial burden; nonmoving party must show genuine issue)
Chaffins v. Kauffman, 995 N.E.2d 707 (Ind. Ct. App. 2013) (medical malpractice negligence cases are rarely appropriate for summary judgment)
David v. Kleckner, 9 N.E.3d 147 (Ind. 2014) (discovery rule: trigger is when claimant knows or should know of malpractice; facts may vary whether symptoms constitute discovery)
Booth v. Wiley, 839 N.E.2d 1168 (Ind. 2005) (discusses interplay of occurrence date and discovery rule)
Herron v. Anigbo, 897 N.E.2d 444 (Ind. 2008) (physician assurances can delay accrual under the discovery rule by deflecting inquiry)