Vickie Fenoglio as Personal Representative of the Estate of Paul Fenoglio v. Boguslaw Gluszak, M.D. and Steve Robertson, Commissioner of the Indiana Dept. of Ins. and Boguslaw Gluszak, M.D.

• Court: Indiana Court of Appeals
• Decided: May 13, 2013
• Docket: 84A01-1211-PL-513
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

JOHN P. NICHOLS MATTHEW J. JANKOWSKI Anderson & Nichols Kopka Pinkus Dolin & Eads, LLC Terre Haute, Indiana Indianapolis, Indiana

IN THE May 13 2013, 9:33 am

COURT OF APPEALS OF INDIANA

VICKIE FENOGLIO, as Personal Representative ) of the Estate of PAUL FENOGLIO, Deceased, ) ) Appellant-Respondent, ) ) vs. ) No. 84A01-1211-PL-513 ) BOGUSLAW GLUSZAK, M.D., ) ) Appellee-Petitioner, ) ) and ) ) STEVE ROBERTSON, COMMISSIONER OF ) THE INDIANA DEPARTMENT OF INSURANCE ) and BOGUSLAW GLUSZAK, M.D., ) ) Non-Respondents. )

APPEAL FROM THE VIGO SUPERIOR COURT The Honorable John T. Roach, Judge Cause No. 84D01-1107-PL-6918

May 13, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge Vickie Fenoglio, as personal representative of the estate of her husband, Paul

Fenoglio, appeals the trial court’s grant of final summary judgment in favor of Boguslaw

Gluszak, M.D. We affirm.

The relevant facts are undisputed. After Paul committed suicide, Vickie, as personal

representative of his estate, filed a proposed medical malpractice complaint against Dr.

Gluszak and Dr. Gregory Brock, alleging that they committed malpractice by respectively

approving and issuing the prescription of a medication to Paul that allegedly caused his

suicide. A thirty-day prescription for the medication was issued on March 6, 2009; Paul

committed suicide on March 16, 2009; and Vickie filed the complaint with the Indiana

Department of Insurance on March 11, 2011.

On July 22, 2011, Dr. Brock moved for summary judgment on the basis that the

complaint was barred by the two-year statute of limitations. See Ind. Code § 34-18-7-1(b)

(stating that a tort claim “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”). On January 9, 2012, the trial court granted final summary judgment for Dr. Brock.

Vickie appealed that order, and another panel of this Court affirmed. Fenoglio v.

Brock, No. 84A04-1202-PL-59, 2012 WL 5954638 (Ind. Ct. App. Nov. 29, 2012), trans. not

sought. We noted that Indiana Code Section 34-18-7-1 “is an occurrence-based statute,

meaning that the statute of limitations begins to run on the date the alleged negligent act

occurred rather than on the date it was discovered, as long as potential plaintiffs are able to

2 discover the alleged malpractice within two years from the occurrence.” Id. at *2. Vickie

argued that because Paul was under Dr. Brock’s continuing care and taking the medication

after March 11, 2009, the doctrine of continuing wrong applied and made her complaint

timely. Based on Gradus-Pizlo v. Acton, 964 N.E.2d 865 (Ind. Ct. App. 2012), we rejected

Vickie’s argument and held that Dr. Brock’s alleged act of malpractice occurred when he

prescribed the medication on March 6, 2009, “more than two years prior to the date Vickie

filed the complaint.” Id.

On May 11, 2012, Dr. Gluszak filed a similar summary judgment motion, which the

trial court granted on October 22, 2012. In this appeal, which is based on substantially

similar facts, Vickie asks us to reach a different result but cites no persuasive authority for

doing so. Consequently, we affirm.

Affirmed.

ROBB, C.J. and FRIEDLANDER, J., concur.