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Indiana Court of Appeals • 2013

Anonymous Physician v. Diana Wininger, Stephen Robertson, Commissioner, Indiana Department of Insurance, and Douglass J. Hill, Panel Chair

998 N.E.2d 749 | 2013 Ind. App. LEXIS 591

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Takeaway

In short, this case holds that Indiana's medical-malpractice limitations period begins when post-treatment symptoms would cause a reasonably diligent patient to investigate, not when a later physician confirms the specific medical error.

Background

In February 2007, Diana Wininger consulted Anonymous Physician (A.P.) about pain in her right foot. A.P. performed surgery on March 20, 2007, shortening her second toe and correcting a deformity. Within several months, the toe stood at a 45-degree angle and Wininger continued to experience pain. A.P. tried patches, strapping, and later physical therapy.

By October 2007, Wininger believed the surgery had not provided the expected relief: her toe remained angled, and her foot hurt more than it had before surgery. She testified that she then knew she should seek a second medical opinion. She did not do so until April 2009, when Dr. Kevin Powers examined her. On an intake form, Wininger wrote that A.P. had "messed [her] foot up." Dr. Powers told her that her toe was too short and recommended surgery to re-lengthen it.

On March 9, 2011, Wininger filed a proposed medical-malpractice complaint with the Indiana Department of Insurance. She alleged that A.P. negligently performed the March 2007 surgery and failed to identify and treat the resulting problems. A.P. sought summary judgment, arguing that Indiana's two-year medical-malpractice limitations period barred the complaint. The trial court denied the motion, certified the ruling for interlocutory appeal, and the Court of Appeals accepted jurisdiction.

Issues

Issue #1

Whether Wininger's medical-malpractice claim was barred by Indiana's two-year statute of limitations.

Holding

Yes. Wininger's symptoms put her on notice by October 2007 that something may have gone wrong with the surgery, so the limitations period was not tolled and her March 2011 complaint was untimely.

Reasoning

Indiana Code section 34-18-7-1 requires a medical-malpractice claim to be filed within two years of the alleged act, omission, or neglect. Although this is generally an occurrence-based limitations period, it is tolled when a patient has no symptoms that would put a reasonably diligent person on notice that medical treatment may have gone wrong. Once the defendant shows that the complaint was filed outside the statutory period, the plaintiff must identify a factual issue supporting a theory that avoids the defense.

The court rejected Wininger's argument that the clock did not begin until Dr. Powers told her in April 2009 that her toe was too short. A patient need not know the precise medical cause of an injury, or be expressly told that malpractice occurred, before the limitations period is triggered. The relevant question is whether the patient experienced symptoms that would lead a reasonably diligent person to investigate and thereby discover possible malpractice.

The court applied Johnson v. Gupta, where a patient experienced fecal incontinence immediately after surgery but did not learn until years later that her rectal muscles had been severed. Johnson held that the limitations period was not delayed until the later diagnosis because the post-surgical symptoms themselves were sufficient to prompt reasonable inquiry. Likewise, Wininger's visibly elevated toe and continuing, worsening foot pain were discernible symptoms apparently connected to the surgery.

By October 2007, Wininger knew that her toe remained at a 45-degree angle, that her foot hurt more than before surgery, and that she should obtain a second opinion. Her later intake-form statement that A.P. had "messed [her] foot up" further confirmed that she associated her condition with A.P.'s treatment. Because those facts gave her notice of a possible injury from medical care well within two years of the March 2007 surgery, tolling did not apply. Her complaint, filed almost four years after surgery, was therefore untimely, and A.P. was entitled to summary judgment.