FILED May 10 2023, 9:30 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT APPELLEE PRO SE Michael Roth Kathryn Gillette Eichhorn & Eichhorn, LLP Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Imad Shawa, M.D., May 10, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CT-1667 v. Appeal from the Marion Superior Court Kathryn Gillette, The Honorable Gary L. Miller, Appellee-Plaintiff. Judge Trial Court Cause No. 49D03-1902-CT-7323
Opinion by Judge Weissmann Judges Bailey and Brown concur.
Court of Appeals of Indiana | Opinion 22A-CT-1667 | May 10, 2023 Page 1 of 8 Weissmann, Judge.
[1] Kathryn Gillette sued the “physician on duty-St. Francis” Hospital for battery.
Nearly three years after her claim arose, Gillette amended her complaint
alleging that Dr. Imad Shawa was the physician who touched her arm without
her permission. Dr. Shawa moved for summary judgment on the grounds that
Gillette’s amendment did not meet the two-year statute of limitations for
battery claims. The trial court disagreed, relying on Indiana Trial Rule 17(F),
which allows for “unknown” parties to be substituted into a complaint at any
time. We reverse and grant Dr. Shawa’s motion for summary judgment, finding
he was not unknown to Gillette.
Facts [2] In late February 2017, Gillette’s mother, Joyce, was admitted to St. Francis
Hospital’s intensive care unit. Joyce suffered from several medical
complications and had a living will with a “do not resuscitate” order.
Nevertheless, hospital staff briefly placed Joyce on a ventilator, allegedly with
the family’s permission. Distraught that her mother’s wishes were not being
followed, Gillette presented a copy of the living will to hospital staff the next
day and urged them to follow its instructions. Still, a heated argument arose
between Gillette and hospital staff over Joyce’s care.
[3] Gillette later returned to the hospital with a written request for an emergency
hearing to force the attending physician to honor Joyce’s living will. When
Gillette found the proper physician, Dr. Shawa, Gillette threatened to sue both
Court of Appeals of Indiana | Opinion 22A-CT-1667 | May 10, 2023 Page 2 of 8 him and the hospital “for a lot of money.” Appellant’s App. Vol. II, p. 123.
Concerned over Gillette’s “emotional and aggressive” state, Dr. Shawa led
Gillette by the arm to a nearby room to discuss her mother’s care. Id. Gillette
objected to being touched, and Dr. Shawa left the room.
[4] That same night, Gillette and her husband discussed that she had a potential
claim for civil battery against the physician who touched her arm. But despite
knowing certain identifying details about the physician—the hospital where and
department in which he worked, what he looked like, and the approximate time
the alleged battery occurred—Gillette did not remember the physician’s name.
Although Gillette tried to find the name by searching the hospital website, she
did not discover that Dr. Shawa was the physician who touched her.
[5] Gillette filed her battery claim just a few days before the two-year statute of
limitations expired.1 As Gillette still had not learned the physician’s name, her
complaint named the defendant as “physician on duty-St. Francis.” Appellant’s
App. Vol. II, p. 24. Nearly a year later, while going through Joyce’s medical
records obtained through discovery, Gillette learned that the proper defendant
was Dr. Shawa. At this point, with the trial court’s permission, Gillette
amended her complaint to substitute Dr. Shawa for the anonymous physician
on duty.
1 In her complaint, Gillette also sued Franciscan Alliance, Inc., and various hospital employees for a variety of claims. Appellant’s App. Vol. II, p. 24. This appeal only concerns the battery claim against Dr. Shawa.
Court of Appeals of Indiana | Opinion 22A-CT-1667 | May 10, 2023 Page 3 of 8 [6] Dr. Shawa moved to dismiss the case, arguing that Gillette should not be
allowed to amend her complaint after the expiration of the statute of limitations
because his identity was not “unknown” during that two-year period. The trial
court at first granted Dr. Shawa’s motion and dismissed the case. But after
Gillette successfully moved to reconsider, the court reinstated the case.
Following additional discovery, Dr. Shawa moved for summary judgment on
the statute of limitations issue, arguing that Gillette’s deposition testimony
proved she reasonably should have known his identity before the statute of
limitations expired. The trial court denied Dr. Shawa’s motion, and he now
appeals that decision.
Discussion and Decision
I. Standard of Review [7] We apply the same standard as the trial court when reviewing summary
judgment rulings. Fox v. Barker, 170 N.E.3d 662, 665 (Ind. Ct. App. 2021). The
moving party bears the burden of showing there are no genuine issues of
material fact and that it is entitled to judgment as a matter of law. Id. Cases
involving a statute of limitations defense are “particularly suitable” for
resolution on summary judgment. Myers v. Maxson, 51 N.E.3d 1267, 1276 (Ind.
Ct. App. 2016). When the moving party establishes a violation of the applicable
statute of limitations, the burden shifts to the nonmovant to establish an issue of
material fact negating the defense. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d
692, 695 (Ind. 2000). Lastly, we note that while Gillette represents herself in
this appeal, “[i]t is well settled that pro se litigants are held to the same legal
Court of Appeals of Indiana | Opinion 22A-CT-1667 | May 10, 2023 Page 4 of 8 standards as licensed attorneys.” Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct.
App. 2016).
II. Statute of Limitations [8] In Indiana, the statute of limitations for battery is two years from the date on
which the claim arose. Ind. Code § 34-11-2-4. Neither party contests when the
clock started on Gillette’s claim or that she filed her complaint within the two-
year period. Instead, the parties dispute whether Dr. Shawa was “unknown” to
Gillette before she amended her complaint to name Dr. Shawa as a defendant
under Indiana Trial Rule 17(F).
[9] Although Trial Rule 17 generally requires that lawsuits “be prosecuted in the
name of the real party in interest,” Ind. Trial Rule 17(A), Section F provides:
Unknown persons. When the name or existence of a person is unknown, he may be named as an unknown party, and when his true name is discovered his name may be inserted by amendment at any time.
Ind. Trial Rule 17(F) (emphasis added). This ability to insert an unknown
defendant into a lawsuit at any time creates obvious tension with the rationale
underlying statutes of limitations—that they “afford[] security against stale
claims.” Shideler v. Dwyer, 417 N.E.2d 281, 283 (Ind. 1981); see also Craven v.
Craven, 103 N.E. 333, 335 (Ind. 1913) (stating that statutes of limitations “rest
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FILED May 10 2023, 9:30 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT APPELLEE PRO SE Michael Roth Kathryn Gillette Eichhorn & Eichhorn, LLP Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Imad Shawa, M.D., May 10, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CT-1667 v. Appeal from the Marion Superior Court Kathryn Gillette, The Honorable Gary L. Miller, Appellee-Plaintiff. Judge Trial Court Cause No. 49D03-1902-CT-7323
Opinion by Judge Weissmann Judges Bailey and Brown concur.
Court of Appeals of Indiana | Opinion 22A-CT-1667 | May 10, 2023 Page 1 of 8 Weissmann, Judge.
[1] Kathryn Gillette sued the “physician on duty-St. Francis” Hospital for battery.
Nearly three years after her claim arose, Gillette amended her complaint
alleging that Dr. Imad Shawa was the physician who touched her arm without
her permission. Dr. Shawa moved for summary judgment on the grounds that
Gillette’s amendment did not meet the two-year statute of limitations for
battery claims. The trial court disagreed, relying on Indiana Trial Rule 17(F),
which allows for “unknown” parties to be substituted into a complaint at any
time. We reverse and grant Dr. Shawa’s motion for summary judgment, finding
he was not unknown to Gillette.
Facts [2] In late February 2017, Gillette’s mother, Joyce, was admitted to St. Francis
Hospital’s intensive care unit. Joyce suffered from several medical
complications and had a living will with a “do not resuscitate” order.
Nevertheless, hospital staff briefly placed Joyce on a ventilator, allegedly with
the family’s permission. Distraught that her mother’s wishes were not being
followed, Gillette presented a copy of the living will to hospital staff the next
day and urged them to follow its instructions. Still, a heated argument arose
between Gillette and hospital staff over Joyce’s care.
[3] Gillette later returned to the hospital with a written request for an emergency
hearing to force the attending physician to honor Joyce’s living will. When
Gillette found the proper physician, Dr. Shawa, Gillette threatened to sue both
Court of Appeals of Indiana | Opinion 22A-CT-1667 | May 10, 2023 Page 2 of 8 him and the hospital “for a lot of money.” Appellant’s App. Vol. II, p. 123.
Concerned over Gillette’s “emotional and aggressive” state, Dr. Shawa led
Gillette by the arm to a nearby room to discuss her mother’s care. Id. Gillette
objected to being touched, and Dr. Shawa left the room.
[4] That same night, Gillette and her husband discussed that she had a potential
claim for civil battery against the physician who touched her arm. But despite
knowing certain identifying details about the physician—the hospital where and
department in which he worked, what he looked like, and the approximate time
the alleged battery occurred—Gillette did not remember the physician’s name.
Although Gillette tried to find the name by searching the hospital website, she
did not discover that Dr. Shawa was the physician who touched her.
[5] Gillette filed her battery claim just a few days before the two-year statute of
limitations expired.1 As Gillette still had not learned the physician’s name, her
complaint named the defendant as “physician on duty-St. Francis.” Appellant’s
App. Vol. II, p. 24. Nearly a year later, while going through Joyce’s medical
records obtained through discovery, Gillette learned that the proper defendant
was Dr. Shawa. At this point, with the trial court’s permission, Gillette
amended her complaint to substitute Dr. Shawa for the anonymous physician
on duty.
1 In her complaint, Gillette also sued Franciscan Alliance, Inc., and various hospital employees for a variety of claims. Appellant’s App. Vol. II, p. 24. This appeal only concerns the battery claim against Dr. Shawa.
Court of Appeals of Indiana | Opinion 22A-CT-1667 | May 10, 2023 Page 3 of 8 [6] Dr. Shawa moved to dismiss the case, arguing that Gillette should not be
allowed to amend her complaint after the expiration of the statute of limitations
because his identity was not “unknown” during that two-year period. The trial
court at first granted Dr. Shawa’s motion and dismissed the case. But after
Gillette successfully moved to reconsider, the court reinstated the case.
Following additional discovery, Dr. Shawa moved for summary judgment on
the statute of limitations issue, arguing that Gillette’s deposition testimony
proved she reasonably should have known his identity before the statute of
limitations expired. The trial court denied Dr. Shawa’s motion, and he now
appeals that decision.
Discussion and Decision
I. Standard of Review [7] We apply the same standard as the trial court when reviewing summary
judgment rulings. Fox v. Barker, 170 N.E.3d 662, 665 (Ind. Ct. App. 2021). The
moving party bears the burden of showing there are no genuine issues of
material fact and that it is entitled to judgment as a matter of law. Id. Cases
involving a statute of limitations defense are “particularly suitable” for
resolution on summary judgment. Myers v. Maxson, 51 N.E.3d 1267, 1276 (Ind.
Ct. App. 2016). When the moving party establishes a violation of the applicable
statute of limitations, the burden shifts to the nonmovant to establish an issue of
material fact negating the defense. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d
692, 695 (Ind. 2000). Lastly, we note that while Gillette represents herself in
this appeal, “[i]t is well settled that pro se litigants are held to the same legal
Court of Appeals of Indiana | Opinion 22A-CT-1667 | May 10, 2023 Page 4 of 8 standards as licensed attorneys.” Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct.
App. 2016).
II. Statute of Limitations [8] In Indiana, the statute of limitations for battery is two years from the date on
which the claim arose. Ind. Code § 34-11-2-4. Neither party contests when the
clock started on Gillette’s claim or that she filed her complaint within the two-
year period. Instead, the parties dispute whether Dr. Shawa was “unknown” to
Gillette before she amended her complaint to name Dr. Shawa as a defendant
under Indiana Trial Rule 17(F).
[9] Although Trial Rule 17 generally requires that lawsuits “be prosecuted in the
name of the real party in interest,” Ind. Trial Rule 17(A), Section F provides:
Unknown persons. When the name or existence of a person is unknown, he may be named as an unknown party, and when his true name is discovered his name may be inserted by amendment at any time.
Ind. Trial Rule 17(F) (emphasis added). This ability to insert an unknown
defendant into a lawsuit at any time creates obvious tension with the rationale
underlying statutes of limitations—that they “afford[] security against stale
claims.” Shideler v. Dwyer, 417 N.E.2d 281, 283 (Ind. 1981); see also Craven v.
Craven, 103 N.E. 333, 335 (Ind. 1913) (stating that statutes of limitations “rest
upon sound public policy,” “tend to the peace and welfare of society” and are
“essential to the general welfare and wholesome administration of justice”).
Recognizing this tension, our Supreme Court has “decline[d] to expansively Court of Appeals of Indiana | Opinion 22A-CT-1667 | May 10, 2023 Page 5 of 8 interpret and apply ‘unknown’ as used in” Rule 17(F) to prevent this otherwise
“unlimited extension of the statute of limitations.” Miller v. Danz, 36 N.E.3d
455, 459 (Ind. 2015).
[10] We find this case controlled by Miller v. Danz, in which our Supreme Court
rejected an attempted amendment based on Rule 17(F). Id. at 459. The plaintiff
in Miller lost a job opportunity with the Indianapolis Mayor’s Office and filed
claims against various people connected to the incident, with some defendants
named anonymously. Before the statute of limitations expired, the plaintiff
knew the name of the unknown defendant’s husband, where she worked, and
how she connected to his claim. Despite knowing this information, the plaintiff
waited until after the statute of limitations expired to amend the complaint
under Rule 17(F) to include the defendant’s name, claiming to have recently
discovered the name during a deposition. Although the plain language of Rule
17(F) allows for the amendment of unknown defendants “at any time,” our
Supreme Court rejected the amendment after considering “the circumstances of
[the] plaintiff’s probable knowledge of th[e] defendant’s identity.” Id. In effect,
because the defendant knew specific facts that had the potential to identify the
unknown defendant before the statute of limitations expired, the defendant was
not “unknown” under Rule 17(F). The same situation exists here.
[11] When Gillette’s claim arose, she knew multiple identifying details about Dr.
Shawa, including where he worked, the specific department he worked in,
when he had been working on a specific day, and even what he looked like.
Despite possessing this knowledge from the moment her claim accrued,
Court of Appeals of Indiana | Opinion 22A-CT-1667 | May 10, 2023 Page 6 of 8 Gillette’s search for Dr. Shawa amounted solely to scanning the website of St.
Francis Hospital—a website that included Dr. Shawa’s name and photograph.
Appellant’s App. Vol. II, p. 126.
[12] Gillette highlights that the hospital website lists Dr. Shawa as “Independent—
Not Employed by Franciscan Health,” a potentially confusing label. But the
website was not the only way Gillette could have identified Dr. Shawa. Many
alternative methods of identification existed. At any point, Gillette could have
returned to the hospital, for example, and located Dr. Shawa using any of the
several identifying details she possessed. Her failure to do so undermines the
protection against “litigation of stale claims” that statutes of limitation afford
both courts and defendants. V. Ganz Builders & Dev. Co. v. Pioneer Lumber, Inc.,
59 N.E.3d 1025, 1032 (Ind. Ct. App. 2016) (quoting Russo v. S. Dev., Inc., 868
N.E.2d 46, 48 (Ind. Ct. App. 1999)).
[13] Much like the plaintiff in Miller, Gillette contends that she diligently searched
for Dr. Shawa’s existence and quickly moved to amend her complaint after
learning his name through discovery. But the record shows otherwise. Gillette’s
main argument is that she could not have reasonably found Dr. Shawa’s name
through her mother’s medical records earlier because they are voluminous and
complex.2 Yet, accepting that as true for the purpose of summary judgment, it
2 Although we recognize the difficulty Gillette asserts to have had as a pro se litigant in examining the evidence in this case, we can afford her no more leeway in conducting discovery than we would a licensed attorney. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016).
Court of Appeals of Indiana | Opinion 22A-CT-1667 | May 10, 2023 Page 7 of 8 does not excuse Gillette’s failure to take any action aimed at identifying Dr.
Shawa other than scanning the hospital’s website—which did, in fact, identify
him.
[14] Thus, under these circumstances, we find that Gillette’s failure to use her
“probable knowledge” of Dr. Shawa’s identity “preclude[s] operation of [Trial
Rule 17(F)’s] unlimited extension of the statute of limitations.” Miller, 36
N.E.3d at 459. We reverse and remand with instructions for the trial court to
enter summary judgment for Dr. Shawa.
Bailey, J., and Brown, J., concur.
Court of Appeals of Indiana | Opinion 22A-CT-1667 | May 10, 2023 Page 8 of 8