MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 11 2016, 8:23 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE B. Michael Macer Patrick A. Shoulders Lauren E. Berger Evansville, Indiana Evansville, Indiana
IN THE COURT OF APPEALS OF INDIANA
Patricia A. Smith, October 11, 2016 Appellant-Plaintiff, Court of Appeals Case No. 82A01-1512-CT-2364 v. Appeal from the Vanderburgh Circuit Court Kelly J. Fehrenbacher, M.D. and The Honorable David D. Kiely, David J. Weaver, M.D., Judge Appellees-Defendants The Honorable Michael J. Cox, Magistrate Trial Court Cause No. 82C01-1501-CT-480
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 1 of 14 [1] Patricia A. Smith filed a medical malpractice action against Kelly J.
Fehrenbacher, M.D. (Dr. Fehrenbacher) and David J. Weaver, M.D. (Dr.
Weaver). Dr. Fehrenbacher sought summary judgment on the ground that
Smith’s complaint was barred by the applicable statute of limitations. The trial
court granted the motion and, finding no just reason for delay, entered final
judgment in favor of Dr. Fehrenbacher. On appeal, Smith contends that
summary judgment was improper because genuine issues of material fact exist
regarding whether the claim against Dr. Fehrenbacher was timely filed.1
[2] We affirm.
Facts & Procedural History
[3] In December 2009, while under the care of her primary physician, Dr.
Fehrenbacher, Smith began complaining of lower extremity pain mostly when
walking. Smith returned to Dr. Fehrenbacher in January and March 2010 with
continuing complaints of leg pain. As a result, Dr. Fehrenbacher had Smith
participate in a segmental pressure study on March 18, 2010. The study
showed mild bilateral end flow disease as a possible cause of Smith’s pain. The
testing physician recommended further evaluation and indicated that “patient
might benefit from MRA with special attention to the iliac arteries or with
arteriogram.” Appendix at 111.
1 Dr. Weaver did not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 2 of 14 [4] Rather than ordering an MRA to determine whether Smith was suffering from
vascular disease, Dr. Fehrenbacher sent Smith for an MRI and then, on March
24, 2010, referred her to Dr. Weaver, a neurosurgeon, for evaluation of lumbar
problems as a possible cause of her leg pain. By the time Smith went to see Dr.
Weaver, she could not walk any significant distance because of pain. In his
treatment of Smith, Dr. Weaver never considered potential vascular causes of
her problems and eventually suggested back fusion surgery. Smith had this
surgery on September 1, 2010.
[5] The surgery did not resolve Smith’s pain, and she returned to Dr. Fehrenbacher
for treatment. After Smith continued to report leg pain at several appointments,
Dr. Fehrenbacher ordered another segmental pressure study on August 8, 2011.
This test, performed on August 11, 2011, revealed findings “consistent with
severe inflow disease suggesting either severe aortobiiliac disease or bilateral
iliac disease.” Id. at 128. The testing physician suggested further evaluation,
including an arteriogram and referral for vascular surgery.
[6] Dr. Fehrenbacher then referred Smith to Wajeehuddin Mohammed (Dr.
Mohammed), a vascular surgeon. Dr. Mohammed performed the needed
procedure – aortoiliac stenting – on September 20, 2011. This procedure
resolved Smith’s pain, allowing her to regularly walk three to four miles
without pain.
[7] On August 17, 2012, Smith filed her proposed complaint for damages against
Dr. Fehrenbacher and Dr. Weaver with the Indiana Department of Insurance.
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 3 of 14 In her submission of evidence to the Medical Review Panel (the Panel), Smith
began with an introduction summarizing her claims, which provided in part:
Smith alleges that the Defendants failed to meet the standard of care in their respective treatments of Smith due to each Defendant’s failure to accurately diagnose her vascular problems, their failure to timely treat her vascular problems, their failure to rule out vascular causes before having back fusion, and performing fusion surgery rather than vascular procedure such as aortoiliac stenting, which was much [sic] simpler and less invasive procedure that ultimately resolved her symptoms. Instead Dr. Weaver, with approval from Dr. Fehrenbacher, performed an unnecessary back fusion surgery without ever considering vascular disease as a source of her symptoms.
****
Had Dr. Fehrenbacher followed up on the results of the segmental pressure studies and the clinical signs of vascular disease by timely ordering a MRA, as had originally been recommended, or had Dr. Weaver considered possible vascular causes such as the peripheral vascular disease that Smith in fact had prior to assuming a neurological cause despite numerous contra-indications, then Smith would not have had to have endured the painful, costly and unnecessary lumbar fusion.
Id. at 35, 37 (emphasis supplied). Within the discussion of care section of her
submission, Smith focused entirely on the substandard care provided by the
doctors leading up to the unnecessary back surgery. She concluded her
submission as follows:
As the aforementioned facts demonstrate, Defendants breached their duty of care to the Plaintiff, Patricia Smith, to provide
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 4 of 14 appropriate medical care. Said treatment rendered by Defendants was negligent and below the appropriate standard of care. Specifically, Dr. Fehrenbacher failed to order further MRA testing or an ateriogram [sic] despite suggestion of bilateral inflow disease in March 2010. She failed to properly inform Smith of the test results, her need for MRA testing, or the fact that vascular issues were a potential cause of her problems. Furthermore she was complicit in Dr. Weaver performing an unnecessary fusion that did not alleviate Smith’s pain. Dr. Weaver ignored any other possible cause for Smith’s problems and proceeded with a dangerous complicated surgery rather than ruling out vascular problems. In fact he did not even consider any other possible cause despite him having notes from Dr. Fehrenbacher revealing that vascular problems existed.
Considering the fact that the vascular and neurologic claudication can be difficult to differentiate, it was only prudent to avoid the much more complicated, painful, dangerous fusion surgery if there was a chance that a much simpler and less invasive procedure could resolve some or all of Smith’s pain. The failure of Dr. Weaver’s lumbar surgery and the later recovery of Smith from her aortoiliac stenting is proof that the lumbar surgery was not necessary.
For these reasons, this Panel should find both Defendants’ care fell below the acceptable standards of care.
Id. at 49.
[8] On October 31, 2014, the Panel issued a unanimous opinion that Dr.
Fehrenbacher (as well as Dr. Weaver) failed to comply with the appropriate
standard of care as charged in the complaint. Thereafter, Smith filed her
complaint with the trial court on January 27, 2015.
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 5 of 14 [9] Dr. Fehrenbacher filed a motion for summary judgment on May 27, 2015, in
which she argued that Smith’s claims against her were time-barred. Among
other things, Dr. Fehrenbacher designated as evidence the affidavit of Gregory
C. Kiray, M.D. (Dr. Kiray), one of the Panel members. Dr. Kiray averred that
he and the other Panel members concluded, based on the medical records, party
submissions, and affidavits, that “Dr. Fehrenbacher failed to comply with the
appropriate standard of care when, on or before March 24, 2010, she failed to
order an MRA and/or further vascular consultation before or at the same time
as making a neurosurgery referral.” Id. at 31.
[10] In August 2015, the trial court granted Dr. Fehrenbacher’s motion for summary
judgment and thereafter made the order a final judgment. The trial court later
denied a motion to correct error filed by Smith. Smith now appeals.
Discussion & Decision
[11] When reviewing a summary judgment ruling, we apply the same standard as
the trial court. David v. Kleckner, 9 N.E.3d 147, 149 (Ind. 2014). “Summary
judgment may be granted, or affirmed on appeal, only ‘if the designated
evidentiary matter shows that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.’” Id.
(quoting Ind. Trial Rule 56(C)). The facts and reasonable inferences established
by the designated evidence are to be construed in favor of the non-moving
party. Id.
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 6 of 14 [12] Further, when a medical-malpractice defendant asserts the statute of limitations
as an affirmative defense, that defendant bears the burden of establishing that
the action was commenced beyond the statutory period. Id. If established, the
burden shifts to the plaintiff to demonstrate an issue of fact material to a theory
that avoids the defense. Id.
[13] The party appealing a grant of summary judgment has the burden of persuading
this court that the ruling was erroneous. See Perkins v. Stesiak, 968 N.E.2d 319,
321 (Ind. Ct. App. 2012), trans. denied. The appellant also bears the burden of
presenting a complete record with respect to the issues raised on appeal. Finke
v. N. Ind. Pub. Serv. Co., 862 N.E.2d 266, 272-73 (Ind. Ct. App. 2006) (“We
cannot review a claim that a trial court erred in granting a motion for summary
judgment when the appellant does not include in the record all the evidence
designated to the trial court and before it when it made its decision.”), trans.
denied; see also Lenhardt Tool & Die Co., Inc. v. Lumpe, 703 N.E.2d 1079, 1084
(Ind. Ct. App. 1998), trans. denied.
[14] Our review has been hampered by Smith’s failure to provide us with Dr.
Fehrenbacher’s motion for summary judgment, the memoranda filed in support
of and in opposition to the motion, and Smith’s own designation of evidence.
Thus, we would be well within our discretion to conclude that Smith, as the
appealing party, failed to present us with a record sufficient to conclude that the
trial court erred in granting summary judgment to Dr. Fehrenbacher. See Finke,
862 N.E.2d at 273. Still, we prefer to decide cases on their merits whenever
possible. Omni Ins. Group v. Poage, 966 N.E.2d 750, 753 (Ind. Ct. App. 2012),
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 7 of 14 trans. denied. We therefore address Smith’s arguments based on the record
before us, which does include Dr. Fehrenbacher’s designated evidence.
[15] On appeal, Smith contends that summary judgment was improperly granted on
the basis that her proposed complaint for damages was not timely filed within
the Medical Malpractice Act’s statute of limitations. Further, she contends that
genuine issues of fact exist regarding the applicability of the doctrines of
continuing wrong and fraudulent concealment.
[16] The Medical Malpractice Act’s statute of limitations is found in Ind. Code § 34-
18-7-1(b) and provides in relevant part:
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 that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect….
The statute is an occurrence-based statute of limitations and, thus, the time for
filing begins to run on the date the alleged negligent act occurred rather than the
date it was discovered. Brinkman v. Bueter, 879 N.E.2d 549, 553 (Ind. 2008). A
substantial body of case law has been developed to address situations in which a
plaintiff was unable to discover the malpractice and his or her resulting injury
within the two year period. See, e.g., David, 9 N.E.3d at 150-153. Where the
discovery date is within the two year period following the occurrence, however,
the statutory limitations period applies and “the action must be initiated before
the period expires, unless it is not reasonably possible for the claimant to
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 8 of 14 present the claim in the time remaining after discovery and before the end of the
statutory period.” Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005).
[17] The parties agree that Dr. Fehrenbacher’s misdiagnosis occurred on or about
March 24, 2010, and was discovered no later than September 2011 by Smith.
Because the discovery date was within two years of the misdiagnosis, Smith
had until March 24, 2012, at least six months, to file her proposed complaint.2
She filed several months after that date, on August 17, 2012.
[18] Smith asserts a number of arguments in an attempt to save her malpractice
claim against Dr. Fehrenbacher. See David, 9 N.E.3d at 153 (once doctor
established that the action was commenced more than two years after the date
of the alleged malpractice, the burden shifted to plaintiff to show an issue of fact
material to a theory that avoids the defense). Smith initially contends that the
negligence continued through August 2011 because Dr. Fehrenbacher
continued to treat her for leg pain after her back surgery and did not render a
proper diagnosis until August 2011. In other words, Smith argues that issues of
material fact exist with regard to whether the doctrine of continuing wrong
tolled the commencement of the statute of limitations.
[19] “The doctrine of continuing wrong applies where an entire course of conduct
combines to produce an injury.” Garneau v. Bush, 838 N.E.2d 1134, 1143 (Ind.
Ct. App. 2005), trans. denied. When this doctrine is applicable, the two-year
2 Smith does not dispute that it was reasonably possible to present her claim in the time remaining.
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 9 of 14 statutory limitations period begins to run at the end of the continuing wrongful
act. Id. “In order to apply the doctrine, the plaintiff must demonstrate that the
alleged injury-producing conduct was of a continuous nature.” Id.
[20] In both her submission to the Panel and her complaint, Smith has consistently
maintained as the basis of her action that the misdiagnosis of two physicians
resulted in her having an unnecessary back surgery. Smith’s submission
focused entirely on the alleged malpractice leading up to the surgery, and she
made no argument to the Panel that Dr. Fehrenbacher’s care after the surgery
constituted a breach of the standard of care and resulted in injury. Indeed, Dr.
Fehrenbacher designated the affidavit of Dr. Kiray, in which Dr. Kiray averred
that the Panel members concluded “Dr. Fehrenbacher failed to comply with the
appropriate standard of care when, on or before March 24, 2010, she failed to
order an MRA and/or further vascular consultation before or at the same time
as making a neurosurgery referral.” Appendix at 31.
[21] Smith attempts to liken her case to Garneau, 838 N.E.2d 1134. In that case, the
doctor performed a hip replacement on Garneau using an obsolete prosthesis.
Following the surgery, Garneau experienced complications and ongoing pain
for eighteen months. During this time, the doctor continued to prescribe pain
medication and physical therapy. He eventually referred Garneau to an
orthopedic surgeon, who replaced the prosthesis.
[22] In response to the doctor’s motion for summary judgment, Garneau asserted
that the doctrine of continuing wrong applied. Specifically, she argued that her
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 10 of 14 ongoing hip problems were the combined result of the doctor’s use of an
obsolete prosthesis and his improper treatment of her hip pain following
surgery. To this end, Garneau designated the affidavit of a board-certified
orthopedic surgeon and Associate Professor in the Department of Orthopedic
Surgery at Indiana University Hospital. The expert averred that the doctor’s
use of an obsolete prosthesis and his failure to recommend revision of the
prosthesis after Garneau continued to suffer hip pain six months post-surgery
were breaches of the appropriate standard of care and resulted in her pain and
inability to regain mobility and maximize her ability to ambulate. Based upon
the affidavit, we concluded that Garneau had established a genuine issue of fact
as to the applicability of the doctrine of continuing wrong. Id. at 1145.
[23] The record before us does not contain an expert affidavit addressing whether
Dr. Fehrenbacher’s post-surgery treatment of Smith constituted a breach of the
standard of care that resulted in injury to Smith. Further, the Panel did not
make a finding in this regard because, with respect to Dr. Fehrenbacher, Smith
framed her allegations of negligence to encompass only acts leading up to the
back surgery.
[24] The alleged injury in this case – an unnecessary surgery – was caused, in part,
by Dr. Fehrenbacher’s misdiagnosis and referral to Dr. Weaver. On the record
before us, we cannot say that a question of fact exists as to whether Dr.
Fehrenbacher’s treatment of Smith during the eleven months after the surgery
amounted to injury-producing conduct of a continuous nature to which the
doctrine of continuing wrong would apply.
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 11 of 14 [25] In a related argument, Smith contends that even if this doctrine does not apply
to toll the statute of limitations, any negligence that occurred within the two
years prior to August 17, 2012 – the date she filed her proposed complaint –
should not be barred. Though not well developed, we take this argument as an
invitation to consider Dr. Fehrenbacher’s post-surgery treatment of Smith’s leg
pain as a separate act of negligence. Again, the difficulty with this argument is
that it was not asserted in Smith’s submission to the Panel or in her complaint,
and she has not designated any evidence to establish a genuine issue of fact in
this regard. Cf. Garneau, 838 N.E.2d at 1145-46 (expert affidavit established a
genuine issue of material fact regarding separate act of negligence during post-
surgery treatment).
[26] Finally, Smith contends that her medical malpractice claim was timely filed
because the doctrine of fraudulent concealment tolled the statute of limitations.
Smith directs us to evidence that Dr. Fehrenbacher did not provide her with the
results of her original segmental pressure study from March 2010 until Dr.
Fehrenbacher did further follow-up in August 2011.
[27] Under the equitable doctrine of fraudulent concealment, “a defendant who has
prevented a plaintiff from discovering an otherwise valid claim, by violation of
duty or deception, is estopped from raising a statute of limitations defense.” Id.
at 1142. In the medical malpractice context, the doctrine may operate to toll
the statute of limitations until the termination of the physician-patient
relationship or until discovery of the alleged malpractice, whichever is earlier.
Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 698 (Ind. 2000). When the
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 12 of 14 doctrine is applicable, “the patient must bring his or her claim within a
reasonable period of time after the statute of limitations begins to run.” Id.
[28] Constructive concealment, as opposed to active, may be merely negligent and
arises when the physician does not disclose to the patient certain material
information. Garneau, 838 N.E.2d at 1142-43. The physician’s failure to
disclose that which she knows, or in the exercise of reasonable care should have
known, constitutes constructive fraud. Id. at 1143.
[29] Smith argues that the malpractice was not discovered until August 2011 and
that, under the doctrine of fraudulent concealment, she had a full two years
after that date to file her proposed complaint. On the contrary, assuming the
doctrine applies, Smith had only “a reasonable period of time” after discovery
in which to bring her claim. Boggs, 730 N.E.2d at 698; see also Cacdac v. Hiland,
561 N.E.2d 758, 759 (Ind. 1990) (“equity will bar the [statute of limitations]
defense only if the claimant has instituted a cause of action within a reasonable
time after discovering the alleged malpractice”); Spoljaric v. Pangan, 466 N.E.2d
37, 44 (Ind. Ct. App. 1984) (“equity will prevent the statute from barring a
plaintiff’s claim during the period the plaintiff is ‘equitably disabled’” but it will
not “provide a plaintiff with an entirely new period”), trans. denied. Smith
waited over a year to file her claim, and she makes no argument on appeal that
waiting this amount of time was reasonable.
[30] In conclusion, the record establishes that Smith discovered the alleged
malpractice of Dr. Fehrenbacher within the applicable two-year statute of
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 13 of 14 limitations. Smith has not established a question of fact regarding whether the
doctrines of continuing wrong and fraudulent concealment apply to save her
complaint from being time-barred. Accordingly, the trial court did not err in
granting summary judgment in favor of Dr. Fehrenbacher.
[31] Judgment affirmed.
[32] Bailey, J. and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CT-2364 | October 11, 2016 Page 14 of 14