Jessica Szamocki v. Anonymous Doctor and Anonymous Group, and Stephen Robertson, Commissioner, Indiana Department of Insurance
70 N.E.3d 419
| Ind. Ct. App. | 2017Background
- In Nov. 2012 Dr. A.D. prescribed mesalamine (Lialda) to Jessica Szamocki and advised a follow-up; last visit was Dec. 10, 2012. A.D. did not document counseling about renal risks or arrange renal monitoring.
- Szamocki developed symptoms and abnormal renal labs in March–April 2013; nephrologists and other physicians told her mesalamine might be a possible cause on multiple occasions (first noted Apr. 9, 2013).
- Szamocki stopped the drug on May 2, 2013 and continued specialty care; by Feb. 17, 2015 she obtained an opinion she believed confirmed mesalamine as the likely cause.
- She filed a proposed medical-malpractice complaint against A.D. on Feb. 25, 2015 (more than two years after Dec. 10, 2012).
- A.D. moved for summary judgment arguing the two-year occurrence-based statute of limitations barred the claim; the trial court granted summary judgment and struck a paragraph of Szamocki’s affidavit as hearsay.
- The Court of Appeals affirmed: it held the continuing-wrong doctrine did not toll the limitations period past the last physician encounter and that Szamocki discovered (or should have discovered) the malpractice within two years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the continuing-wrong doctrine tolled the 2-year occurrence-based statute of limitations beyond the last physician-patient encounter | Szamocki: failure to monitor while she took mesalamine was a continuing wrong that tolled the period until she stopped the drug (May 2, 2013) | A.D.: the alleged malpractice was a single act (prescription/failure to monitor ended at last visit on Dec. 10, 2012) | Court: continuing-wrong inapplicable; limitations ran from last encounter (Dec. 10, 2012) |
| When the discovery/trigger date occurred and whether filing was within a reasonable time after discovery | Szamocki: did not have a confirmed causal diagnosis until Feb. 17, 2015 | A.D.: plaintiff was told as early as Apr. 9, 2013 (and later dates) that mesalamine might be the cause; diligent inquiry would have been possible | Court: plaintiff had sufficient notice by Apr. 9, 2013 (and certainly by Sept. 17, 2014); suit filed Feb. 25, 2015 was untimely |
| Whether plaintiff’s delay was excused because it was not reasonably possible to file within the statutory period | Szamocki: claimed uncertainty and that she delayed filing for reasons including physician statements | A.D.: no evidence of fraudulent concealment or disability; plaintiff was a paralegal during the period (undermines claim of impossibility) | Court: no obstacle shown; it was reasonably possible to file within two years, so claim is barred |
| Admissibility of affidavit paragraph describing physician’s discouragement of suit | Szamocki: paragraph explains why she delayed filing (not offered for truth) | A.D.: hearsay and inadmissible for summary judgment purposes | Court: trial court did not abuse discretion in striking the paragraph or the paragraph was immaterial to the legal conclusion |
Key Cases Cited
- Havens v. Ritchey, 582 N.E.2d 792 (Ind. 1991) (continuing-wrong doctrine does not extend malpractice omission beyond last physician encounter for failure-to-diagnose claims)
- David v. Kleckner, 9 N.E.3d 147 (Ind. 2014) (trigger/discovery date when claimant knows or should know of malpractice and resulting injury; reasonable diligence standard)
- Houser v. Kaufman, 972 N.E.2d 927 (Ind. Ct. App. 2012) (summary-judgment standard and discussion of statute-of-limitations burden-shifting in malpractice cases)
- Gradus-Pizlo v. Acton, 964 N.E.2d 865 (Ind. Ct. App. 2012) (prescription of medication is a single act; continuing-wrong doctrine inapplicable)
- Anonymous Physician v. Rogers, 20 N.E.3d 192 (Ind. Ct. App. 2014) (continuing-wrong doctrine does not toll statute beyond last physician encounter; last encounter is dispositive for opportunity to discover causation)
- Herron v. Anigbo, 897 N.E.2d 444 (Ind. 2008) (date may be set as a matter of law when undisputed evidence shows plaintiff should have learned of malpractice and no obstacle to suit)