106 N.E.3d 1079
Ind. Ct. App.2018Background
- Three consolidated wrongful-death/medical-malpractice matters (Biedron, Sitko, Orr) involve implantation of cardiac devices (CRT-P or CRT-D) by physicians employed by a medical practice and procedures performed at Anonymous Hospital; each plaintiff filed proposed complaints years after the decedent’s death.
- Plaintiffs relied on an expert affidavit from Dr. Nadim Nasir to argue fraudulent concealment tolled applicable two-year statutes (medical-malpractice and wrongful-death/nonclaim statutes) so their late filings were timely.
- Defendants moved for summary judgment as barred by the two-year limitation periods; they also moved to strike portions of Dr. Nasir’s affidavit for lack of personal knowledge and inadmissible opinion about others’ state of mind.
- Trial courts: Biedron — struck parts of the affidavit and granted summary judgment; Sitko and Orr — denied motions to strike and denied defendants’ summary judgment motions (both certified for interlocutory appeal); appeals consolidated.
- The Court of Appeals reviewed (a) admissibility of Dr. Nasir’s affidavit (personal knowledge, state-of-mind testimony, conflation of negligence and fraud), (b) whether plaintiffs established active fraudulent concealment to toll limitations, and (c) as-applied constitutionality of the occurrence-based malpractice statute (raised by Orr).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Nasir affidavit (personal knowledge / state of mind) | Affidavit is competent expert evidence showing concealment and malpractice | Affidavit contains inadmissible matter: lacks personal knowledge of physician–patient communications and impermissible opinions on others’ intent | Court: affidavit statements about what doctors told patients and about doctors’ intent are inadmissible; trial courts abused discretion by not striking those portions in Sitko/Orr and correctly struck in Biedron |
| Fraudulent concealment tolling (active concealment) | Plaintiffs: physicians affirmatively misrepresented need for devices, so concealment tolled limitations | Defendants: any concealment was passive or negligent; plaintiffs could have discovered facts by obtaining records or earlier inquiry | Court: plaintiffs failed to designate admissible evidence that defendants’ conduct amounted to active concealment that prevented investigation; summary judgment for defendants appropriate (Biedron affirmed; Sitko/Orr summary judgment denials reversed) |
| Burden on summary judgment where limitations defense raised | Plaintiffs contend affidavit creates genuine issue to avoid summary judgment | Defendants showed claims were filed after statutory period; burden shifted to plaintiffs to show tolling evidence | Court: where plaintiffs designated no admissible evidence to defeat statute defense, summary judgment proper; attorney argument/speculation insufficient |
| Constitutionality of occurrence-based malpractice statute as applied (Orr) | Orr: two-year occurrence statute unconstitutional as applied given long delay and facts | Defendants: plaintiff knew of condition and treatment; records available earlier—reasonable diligence required inquiry | Court: statute not unconstitutional as applied here; trigger date occurred no later than death; reasonable diligence would have required earlier inquiry; summary judgment for defendants on malpractice claims affirmed |
Key Cases Cited
- Broadbent v. Fifth Third Bank, 59 N.E.3d 305 (Ind. Ct. App.) (summary-judgment standard)
- Beatty v. LaFountaine, 896 N.E.2d 16 (Ind. Ct. App.) (mere speculation insufficient to create factual issue)
- Myers v. Maxson, 51 N.E.3d 1267 (Ind. Ct. App.) (statute-of-limitations as basis for summary judgment; burden shifting)
- Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692 (Ind.) (fraudulent concealment tolling doctrine)
- GYN-OB Consultants, LLC v. Schopp, 780 N.E.2d 1206 (Ind. Ct. App.) (active vs. passive concealment in physician cases)
- Ellenwine v. Fairley, 846 N.E.2d 657 (Ind.) (interaction of malpractice and wrongful-death timing)
- Herron v. Anigbo, 897 N.E.2d 444 (Ind.) (occurrence-based statute and reasonable-diligence trigger)
- Brinkman v. Bueter, 879 N.E.2d 549 (Ind.) (plaintiff need not be told malpractice to trigger statute)
- Booth v. Wiley, 839 N.E.2d 1168 (Ind.) (occurrence statute may be unconstitutional in certain situations)
- Martin v. Richey, 711 N.E.2d 1273 (Ind.) (statute cannot bar claim before plaintiff knows or reasonably should know malpractice)
- Weaver v. State, 643 N.E.2d 342 (Ind.) (limitations on testifying about another’s intent)
- Morris v. Crain, 71 N.E.3d 871 (Ind. Ct. App.) (Trial Rule 56(E) affidavit requirements and striking inadmissible affidavit material)
- Houser v. Kaufman, 972 N.E.2d 927 (Ind. Ct. App.) (declining to assume physician notes were repeated to patient for summary-judgment purposes)
- Turner v. Bd. of Aviation Comm’rs, 743 N.E.2d 1153 (Ind. Ct. App.) (unsworn attorney argument not competent evidence)