GRADUS-PIZLO v. ActonGRADUS-PIZLO v. Acton
OPINION
STATEMENT OF THE CASE
Aрpellants-Defendants, Select Specialty Hospital Indianapolis, Inc. (Select Special Hospital) and Irmina Gradus-Pizlo, M.D. (Dr. Gradus-Pizlo) (collectively, Appellants), appeal the trial court’s denial of their motion of summary judgment in favor of Appellee-Plaintiff, Donald Acton (Acton), concluding that there are genuine issues of material fact with respect to the commencement of the statute of limitations for Acton’s Proposed medical malpractice Complaint.
We reverse.
ISSUE
Appellants present three issues on appeal, which we consolidate аnd restate as the following single issue: Whether the trial court erred in its conclusion that genuine issues of material fact remain whether Acton properly filed his Proposed Complaint in accordance with the applicable statute of limitations under the Medical Malpracticе Act.
FACTS AND PROCEDURAL HISTORY
Myrtle Acton (Myrtle) first became a patient of Dr. Gradus-Pizlo in February 2006. On March 2, 2006, Myrtle was admitted to Methodist Hospital by Dr. Gra-dus-Pizlo for diagnostic testing related to a congenital heart defect. During the course of the evaluation, it became clear that Myrtle was a candidate for surgicаl correction of her heart defect. On March 12, 2006, as part of the preparations for surgery, Dr. Gradus-Pizlo placed Myrtle
On March 29, 2006, at approximately 6:15 a.m., Myrtle suffered ventricular tachycardia. When Dr. Gradus-Pizlo was informed of this development, she recommended that Myrtle be transferred to the Methodist Hospital Intensive Care Unit (ICU) for further care. While in the elevator during transfer from Select Specialty Hospital to Methodist Hospital ICU, Myrtle went into full cardiac arrest. She was immediately transported back to Select Specialty Hospital where she was stabilized. At approximately 12:54 p.m., Myrtle was transferred to Methodist Hospital. Upon admission at the ICU, new treatment and medication orders were entered and at that time, the Spironolactone medication was discontinued. Myrtle subsequently died at Methodist Hospital on April 12, 2006.
On April 1, 2008, Acton, individually and as representative of his deceased wife, filed a Proposed Complaint with the Indiana Department of Insurance alleging medical malpractice by Dr. Gradus-Pizlo and Select Specialty Hospital. On February 28, 2010 and May 25, 2010, Select Specialty Hospital and Dr. Gradus-Pizlo respectively filed separate motions for summary judgment and designation of evidence claiming that Acton had failеd to comply with the Medical Malpractice Act statute of limitations. On June 1, 2010, Acton responded by filing his memorandum in opposition and designation of evidence. On February 16, 2011, the trial court conducted a hearing on both motions. On April 4, 2011, the trial court denied both motions for summary judgment finding “genuine issues of material fact remain with regards to the trigger date of the statute of limitations.” (Appellants’ App. p. 10).
Appellants now file this interlocutory appeal. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Appellants file this interlocutory appeal from the trial court’s denial of their mоtions for summary judgment in favor of Acton. They contend that Acton failed to file his cause of action within the Medical Malpractice Act’s statute of limitations. We will analyze the trial court’s denial of each motion in turn.
I. Summary Judgment
Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment.
First Farmers Bank & Trust Co. v. Whorley,
When the moving party asserts the statute of limitations as an affirmative defense and establishes that the action was commenced outside of the statutory period, the burden shifts to the non-moving party to establish an issue of material fact material to a theory that avoids the affirmative defense.
Boggs v. Tri-State Radiology, Inc.,
We observe that in the present case, the trial court entered findings of fact and conclusions of law in support of its judgment. Special findings arе not required in summary judgment proceedings and are not binding on appeal. Id. However, such findings offer this court valuable insight into the trial court’s rationale for its review and facilitate appellate review. Id.
II. Dr. Gradus-Pizlo
Dr. Gradus-Pizlo contends that the trial court erred when it denied her motion for summary judgment beсause Acton’s claim of medical malpractice was filed outside the applicable two-year statute of limitations. Specifically, she asserts that based on the occurrence-based statute of limitations and the absence of a continuing wrong, Acton filed his claim late.
A. Statute of Limitations
The statute of limitations for medical malpractice claims is contained in Indiana Code section 34-18-7-l(b):
A claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or thаt should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect.
This occurrence-based statute of limitations has been upheld as constitutional on its face under the Indiana Constitution, Article I, Sections 12 and 23, but has also been hеld to be unconstitutional as applied in certain circumstances.
Garneau v. Bush,
In
Booth v. Wiley,
However, if a claimant does not discover the alleged malpractice and the resulting injury, and does not possess information thаt would lead a reasonably diligent person to such discovery during the two-year period, then the purely occur
In determining the discovery datе (in the language of Booth) or trigger date (the term used in the more recent decision of
Herron v. Anigbo,
In his Proposed Complaint, Acton contends
7. [Myrtle’s] medications were changed and on March 14, 2006, Dr. Gradus-Pizlo added Spironolactone to her other medications and notеd that her potassium should be checked in one week.
8. On or about March 29, 2006, [Myrtle] had an episode of ventricular tachycardia and it was decided that she would be transferred [from Select Hospital] to Methodist Hospital proper.
9. Upon leaving the elevator, she went into full cardiac arrest and the resuscitation efforts were continued in the elevator returning to the 8th floor.
10. Her potassium level was dangerously high at 7.2 and because of the difficulty in resuscitation efforts, it was estimated that she was without oxygen for 25 minutes.
11.The high potassium caused her cardiac arrest. Thе cardiac arrest resulted in brain damage and ultimately her death on April 12, 2006.
(Appellants’ App. p. 82).
Acton now alleges that he could not have learned of any malpractice until Myrtle’s death on April 12, 2006. We disagree. The malpractice, as alleged in Acton’s Proposed Complaint, is Dr. Gradus-Pizlo’s enhancement of Myrtle’s medication regime with Spironolactone on March 12, 2006. This new additional medication is alleged to have led to a high potassium level, causing a cardiac arrest on March 29, 2006, which resulted in her death two weeks later. Based on these facts, we determine the discovery date or trigger date to be March 29, 2006, the date of Myrtle’s ventricular tachycardia and subsequent cardiac arrest. On that date, Myrtle’s condition brought to light the possibility that Dr. Gradus-Pizlo might have been negligent by prescribing Spironolac-tone. We reject Acton’s contention that the trigger date should be defined as the date of the resulting injury,
i.e.,
Myrtle’s death on April 12, 2006; as we stated before, the possession of information leading to a reasonable possibility that malpractice has occurred is sufficient for the statute of limitations to be triggered.
See Garneau,
Thus, with an alleged act of malpractiсe occurring on March 12, 2006, the occurrence-based statute of limitations would have expired on Wednesday, March 12, 2008. With Acton’s discovery or trigger date placed on March 29, 2006, Acton had sufficient information that would have led a reasonably diligent person to the discovery of malpractice during the remaining 1 year, 11 months, and 2 weeks of the two-year statute of limitations period. By filing his Proposed Complaint on April 1,
B. Continuing Wrong
In an effort to avoid the two-year statute of limitations, Acton claims that the doctrine оf continuing wrong applies and prevents his claim from being time-barred. The doctrine of continuing wrong applies where an entire course of conduct combines to produce an injury.
Garneau,
Acton specifiсally contends that the entire course of care provided to Myrtle by Dr. Gradus-Pizlo throughout Myrtle’s hospitalization until the day of her death resulted in a continuing wrong that tolled the two-year statute of limitations. However, Acton’s alleged medical malpractice consists of a single act, thе prescription of Spironolactone, not an “entire course of conduct.” See id. Even if we characterize the daily admission of the medication to Myrtle as a continuing course of conduct, Acton’s claim would still not be properly filed. Myrtle was prescribed Spironolac-tоne on March 12, 2006. The medication was discontinued on March 29, 2006, the day of her cardiac arrest and upon her re-admittance at the ICU, new treatment and medication orders were entered. Thus, the continuing wrong ceased to exist on March 29, 2006 and the statute of limitations commenced to run. By filing his cause of action on April 1, 2008, Acton’s cause was time-barred by the statute of limitations. Therefore, we reverse the trial court’s denial of summary judgment and grant summary judgment to Dr. Gradus-Pizlo.
III. Select Specialty Hospitals
Applying the occurrence-based statute of limitation with respect to Select Specialty Hospitals, we reach a similar result. Although Acton’s Proposed Complaint does not single out a specific act of malpractice committed by Select Specialty Hospitals, his argument focuses on the continuation of the prescribed Spironolac-tone medication while Myrtlе was in Select Specialty Hospital’s care. Even if the continuation of a prescription prescribed by a doctor not in Select Specialty Hospital’s employment can be found to constitute an act of malpractice on the part of Select Specialty Hospital, it should be noted that Select Specialty Hospital stopped giving Myrtle the medication on March 29, 2006, the day of her cardiac arrest. At that moment, the statute of limitations commenced. As we concluded above, Acton’s cause filed on April 1, 2008 was untimely and barred by the application of the statute of limitations. We reverse the trial court’s denial of summary judgment and grant summary judgment to Select Specialty Hospitals.
CONCLUSION
Based on the foregoing, we that find that the trial court improperly denied summary judgment to Dr. Gradus-Pizlo and Selection Specialty Hospitals. We reverse the trial court’s denial and grant summary judgment to Dr. Gradus-Pizlo and Select Specialty Hospitals.
Reversed.