Patricia A. Smith v. Kelly J. Fehrenbacher, M.D. and David J. Weaver, M.D. (mem. dec.)
82A01-1512-CT-2364
| Ind. Ct. App. | Oct 11, 2016Background
- Patricia Smith experienced progressive lower-extremity claudication beginning Dec 2009; Dr. Fehrenbacher ordered a segmental pressure study in March 2010 showing possible inflow (iliac/aortobiiliac) disease but did not order an MRA and instead referred Smith to neurosurgeon Dr. Weaver.
- Dr. Weaver performed a lumbar fusion on Sept 1, 2010; the surgery failed to relieve leg pain.
- A repeat segmental pressure study in August 2011 showed severe inflow disease; vascular surgeon Dr. Mohammed performed aortoiliac stenting on Sept 20, 2011, which resolved Smith’s symptoms.
- Smith submitted a proposed complaint to the Medical Review Panel on Aug 17, 2012; the Panel unanimously found both physicians breached the standard of care on Oct 31, 2014.
- Smith filed her complaint in trial court on Jan 27, 2015. Dr. Fehrenbacher moved for summary judgment arguing the claim was time-barred; the trial court granted summary judgment and entered final judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Smith’s claim was time-barred under the Medical Malpractice Act (IC 34-18-7-1) | Smith argued discovery of malpractice occurred no later than Aug 2011, and she timely filed within two years (or alternatively within a reasonable time after discovery if equitable tolling applies) | Fehrenbacher argued the alleged negligent act occurred on or before Mar 24, 2010, and Smith filed more than two years after that date | Court held the claim was time-barred: discovery occurred within two years, and Smith did not file within the statutory period. |
| Applicability of the continuing-wrong doctrine to toll limitations | Smith argued negligent conduct continued through Aug 2011 (post-fusion care), so limitations should run from the end of that course | Fehrenbacher argued the alleged injury-producing conduct was the pre-surgery misdiagnosis/referral (ended Mar 2010) and post-op care was not alleged as a separate breach to the Panel or complaint | Court held continuing-wrong did not apply: plaintiff framed malpractice as pre-surgery misdiagnosis; no designated expert evidence showed continuous injury-producing conduct after surgery. |
| Whether post-surgery care constituted a separate actionable negligence within two years before filing | Smith suggested post-op treatment could be treated as a separate negligent act falling within the two-year window | Fehrenbacher noted Smith did not assert this theory to the Panel or in her complaint and presented no expert evidence supporting a separate post-op breach | Court rejected this argument: no evidence or pleading supported a separate post-surgery malpractice claim. |
| Applicability of fraudulent concealment (equitable tolling) | Smith argued she was not informed of March 2010 study results until Aug 2011, so concealment tolled the limitations period | Fehrenbacher argued even if concealment applied, equity only requires filing within a reasonable time after discovery and Smith waited over a year without showing reasonableness | Court held fraudulent concealment did not save the claim: plaintiff waited over a year after discovery and offered no argument that this delay was reasonable. |
Key Cases Cited
- David v. Kleckner, 9 N.E.3d 147 (Ind. 2014) (summary-judgment standard and burdens when statute-of-limitations defense asserted)
- Brinkman v. Bueter, 879 N.E.2d 549 (Ind. 2008) (occurrence-based malpractice limitations; accrual at date of negligent act)
- Booth v. Wiley, 839 N.E.2d 1168 (Ind. 2005) (when discovery occurs within two years, plaintiff must file before statutory period expires unless not reasonably possible)
- Garneau v. Bush, 838 N.E.2d 1134 (Ind. Ct. App. 2005) (continuing-wrong doctrine applies where continuous course of conduct produces injury; expert evidence required)
- Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692 (Ind. 2000) (fraudulent concealment tolling in medical-malpractice context; plaintiff must sue within reasonable time after discovery)
- Cacdac v. Hiland, 561 N.E.2d 758 (Ind. 1990) (equity permits tolling only if claimant institutes action within reasonable time after discovery)
- Spoljaric v. Pangan, 466 N.E.2d 37 (Ind. Ct. App. 1984) (equitable disability/concealment tolls limitations but does not create a new full period)